Norman v Besser Industries (NT) Pty Ltd

[1996] IRCA 350

DECISION NO:  350/96

CATCHWORDS

INDUSTRIAL LAW - application for leave to appeal from an interlocutory decision of a Judge - part of compensation order stayed - tests to be applied for staying compensation orders of Judicial Registrars - requirement of “good reasons” or that it is “appropriate to intervene” - no material distinction between test to be applied to stays of orders of Judges and Judicial Registrars - relevant considerations in granting a stay include evidence as to an individual’s capacity to re-pay

Industrial Relations Act 1988 s 170DB, 170EE, 376, 377
Industrial Relations Court Rules, Order 52 rules 3, 17
High Court Rules, Order 55 rule 10
Evidence Act 1995 s75
Family Law Act 1975

AB v National Crime Authority, Federal Court of Australia, VG 765 of 1995, Full Court, 3 July 1996, per Burchett & Whitlam JJ, unreported

Adam P. Brown Male Fashion Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 at 177

Bysouth v Tawlord Nominees Pty Ltd (1995) 60 IR 446

Clements v Lillian Kaneff Pty Limited, Industrial Relations Court of Australia, AI 0154R of 1994, Moore J, 29 April 1996, unreported

Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220

Fitzroy Motors v Hyundai Automotive Distributors (1995) 133 ALR 445

Harris v Caladine (1992) 172 CLR 84

Kerrin v Leighton Contractors Pty Ltd (1986) 44 IR 246

Marshall v Main, Industrial Relations Court of Australia, VI 3910 of 1995, Marshall J, 25 July 1995, unreported

Meneling Station Pty Ltd v Australasian Meat Industry Employees Union (1987) 20 IR 296

Stephen Earlsford Potter v Pilot Freight Pty Ltd, VI 4943R of 1995, Marshall J, 1 July 1996, unreported

Powerflex Services Pty Ltd A.C.N 007 302 810 & Ors v Data Access Corporation Registration No. 508 968, VG 295 of 1996, Burchett, Heerey & Whitlam JJ, 4 June 1996, unreported

Public Transport Corporation v Eames & Ors, Industrial Relations Court of Australia, No. VI 6073 of 1995, Full Court, 22 December 1995, unreported

R v Moore; ex parte Federated Miscellaneous Workers Union (1978) 140 CLR 470

Re Printing and Kindred Industries Union; ex parte Nationwide News Pty Ltd (1994) 122 ALR 303

Roy Stanley Jones v Swan Hill Quality Meats Pty Ltd, Industrial Relations Court of Australia, VI 3657R of 1995, Marshall J, 14 June 1996, unreported

Wyndham Lodge Nursing Home v Reader (1995) 64 IR 94

No. DI 1191R of 1995
NORMAN v BESSER INDUSTRIES (NT) PTY LTD

No. DI 1192R of 1995
STONE v BESSER INDUSTRIES (NT) PTY LTD

CORAM:    Moore, Marshall and Madgwick JJ
PLACE:    Melbourne
DATE:     1 August 1996

IN THE INDUSTRIAL RELATIONS          )
COURT OF AUSTRALIA                   )
NORTHERN TERRITORY DISTRICT REGISTRY    )             
  No. DI 1191R of 1995

BETWEEN:        GREGORY ALAN NORMAN

Applicant

AND:  BESSER INDUSTRIES (NT) PTY LTD
  Respondent

CORAM:    Moore, Marshall and Madgwick JJ
PLACE:    Melbourne
DATE:     1 August 1996

ORDER

THE COURT ORDERS THAT:

1.The time within which the application for leave to appeal may be filed be extended to 29 May 1996.

2.The application for leave to appeal 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                   )
NORTHERN TERRITORY DISTRICT REGISTRY    )             

No. DI 1192R of 1995

BETWEEN:       STEVEN WILLIAM STONE

Applicant

AND:  BESSER INDUSTRIES (NT) PTY LTD
  Respondent

CORAM:    Moore, Marshall and Madgwick JJ
PLACE:    Melbourne
DATE:     1 August 1996

ORDER

THE COURT ORDERS THAT:

1.The time within which the application for leave to appeal may be filed be extended to 29 May 1996.

2.The application for leave to appeal 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                   )
NORTHERN TERRITORY DISTRICT REGISTRY    )             

No. DI 1191R of 1995

BETWEEN:        GREGORY ALAN NORMAN

Applicant

AND:  BESSER INDUSTRIES (NT) PTY LTD

Respondent

No. DI 1192R of 1995

BETWEEN:       STEVEN WILLIAM STONE

Applicant

AND:  BESSER INDUSTRIES (NT) PTY LTD

Respondent

CORAM:    Moore, Marshall and Madgwick JJ
PLACE:    Melbourne
DATE:     1 August 1996

REASONS FOR JUDGMENT

THE COURT

BACKGROUND

This matter is an application for leave to appeal against part of a judgment of North J.  While it is not entirely apt, we will, for convenience, refer to his Honour as the trial judge.  The judgment was given on 2 May 1996 wherein the trial judge granted a stay of part only of two awards of compensation made by Judicial Registrar Blokland (“the Judicial Registrar”) on 25 March 1996.

In matter DI 1191 of 1995 concerning Mr Norman, the Judicial Registrar ordered that $7,773 be paid by Besser Industries (NT) Pty Ltd (“the employer”).  In matter DI 1192 of 1995 concerning Mr Stone, the Judicial Registrar ordered that $12,782 be paid by the employer.

The employer sought a review of the exercise of power by the Judicial Registrar before a Judge of the Court.  On 2 May 1996 the review in each matter came before the trial judge.  On that day the trial judge gave ex-tempore reasons for judgment and ordered that part of the respective awards of compensation be stayed pending the hearing and determination of the reviews.

In the case of Mr Norman, the trial judge ordered that the payment of $3,208 be stayed.  In the case of Mr Stone, the relevant sum of compensation stayed was $2,800.  The consequence of the trial judge’s orders is that the employer is now obliged to pay Mr Norman the sum of $4,565 and Mr Stone the sum of $9,982.

THE TRIAL JUDGE’S REASONS

The trial judge referred to evidence concerning the personal circumstances of Mr Norman and Mr Stone.  He observed that Mr Norman had earned $3,400 in casual employment since the hearing before the Judicial Registrar.  He referred to the fact that the Judicial Registrar’s calculations used to determine the quantum of his compensation did not include a sum of $1,908 received by Mr Norman between the date of termination of his employment and the date of the hearing before the Judicial Registrar.  As to Mr Stone, the trial judge observed that he had earned some $3,100 net in alternative employment at the time of the hearing before the Judicial Registrar in February 1996.  He noted the concessions of counsel for Mr Stone that “there was an arguable case against Mr Stone in respect of $1,500 representing tax payable on the amount of earnings of Mr Stone since (his) termination of employment which had not been deducted from the award of compensation”.  He also referred to evidence that Mr Stone “is paying off a car at the rate of approximately $315 per month pursuant to a loan agreement which he has entered into jointly with his de facto wife”.  The trial judge further observed that “an amount of $1,300 had been paid to each employee by way of termination pay but had not been deducted from the award of compensation”.

The trial judge stayed the payment of the $1,300 referred to above in respect of each of the men and the sums of $1,908 and $1,500 referred to above in respect of Mr Norman and Mr Stone respectively.  No contention has been raised on the application for leave to appeal by the legal representatives of the men as to the inappropriateness or otherwise of the trial judge staying the payment of those amounts.

The trial judge was of the view that the characterisation of the test to be applied to the making of orders staying amounts of compensation ordered by Judicial Registrars was not significantly differently put by the parties.

He said that:

“... the test requires the applicant to positively persuade the Court to intervene to stay an order of which the recipient has been the beneficiary.  It might be that the test does not require exceptional circumstances to be shown but certainly some good reason for the Court to intervene must exist.

In this respect, the Full Court ... in different, but not relevantly different, circumstances has posed the test as being whether, at the end of the day, the Court regards it as appropriate to intervene to prevent, for a limited time, the recipients of the order from obtaining the benefits of that order: Re Printing and Kindred Industries Union; ex parte Nationwide News Pty Ltd (1994) 122 ALR 303.”

The trial judge found that the employer had:-

“... failed to demonstrate such circumstances as to justify the Court intervening to grant a stay in respect of the entirety of the awards made.”

Immediately before setting out his conclusion, the trial judge referred to evidence before him that each of Mr Norman and Mr Stone regarded himself capable of repaying any amount of compensation which was not stayed in the event that the employer succeeded on the review.

SUBMISSIONS OF THE EMPLOYER

The employer posed five questions which it characterised as “leave questions” for consideration by the Full Court.  The first of those was:-

“Whether the judge disclosed in his reasons for decision the principle of law he applied to decide.”

It was submitted that the trial judge “enumerated two tests, without making clear whether (he) applied either or both to reach (his) decision”.  We see no material distinction between the test of showing some good reason for the Court to intervene and the test of whether it is appropriate for the Court to intervene.  Both formulations really amount to the same thing.  A reason would not be a good reason to intervene if it was inappropriate to do so.  We believe that the trial judge did in his reasons disclose the principle of law which he determined should apply.

The second question raised by the employer was whether if a principle of law was applied was it the correct principle.  It was submitted that in relying upon Re Printing and Kindred Industries Union; ex parte Nationwide News Pty Ltd (1994) 122 ALR 303 (“PKIU”) the trial judge erred.  It was argued that PKIU was not concerned with the Court’s inherent jurisdiction to stay execution under an order or judgment but was concerned with the correct application of Order 55 rule 10 of the High Court Rules on remittal by the Full Court.

Order 55 rule 10 of the High Court Rules provides that:-

“An order nisi for certiorari or prohibition shall, if the Court or a Justice so directs, operate as a stay of the proceedings in question until the determination of the application or until the Court or a Justice otherwise orders.”

It was submitted that the correct principle to apply to an application for a stay of execution of an order is set out by Dawson J Federal Commissioner of Taxation v Myer Emporium Ltd (“Myer”) (1986) 160 CLR 220 at 222-223 where his Honour said:

“It is well established by authority that the discretion which  it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is not to be deprived of the fruits of his litigation pending the determination of any appeal: see e.g. The Annot Lyle [1886] 11 PD 114, at p. 116; Scarborough v Lew’s Junction Stores Pty. Ltd. [1963] VR 129 at p. 130. Special circumstances justifying a stay will exist when it is necessary to prevent the appeal, if successful, from being nugatory: see Wilson v Church [No. 2] [1879] 12 Ch.D 454 at p. 458; Klinker Knitting Mills Pty. Ltd. v L’Union Fire Accident and General Insurance Co. Ltd. [1937] VLR 142. Generally that will occur when, because of the respondent’s financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed: see McBride v Sandiland [No. 2] [1918] CLR 169 at p. 375.”

The approach of Dawson J in Myer is consistent with that adopted by Bowen CJ in Meneling Station Pty Ltd v Australasian Meat Industry Employees Union (“Meneling”) (1987) 20 IR 296 at 296-297 where his Honour said:

“It is a matter of discretion for this Court.  It is necessary for anyone who applies for a stay to demonstrate that it is a case for a stay.  This is sometimes put on the basis of showing special or exceptional circumstances, or, as was put in Alexander v Cambridge Credit Companies (1985) 2 NSWLR 685, that it is ‘an appropriate case’, without laying down what are the limits of appropriate cases.”

The approach adopted in Meneling is not inconsistent with the approach adopted by the trial judge in these matters.  See also Roy Stanley Jones v Swan Hill Quality Meats Pty Ltd, Industrial Relations Court of Australia, VI 3657R of 1995, Marshall J, 14 June 1996, at 3-6, unreported.

The underlined portion of the passage cited from the decision of Dawson J in Myer was applied by Marshall J in Wyndham Lodge Nursing Home v Reader (“Reader”) (1995) 64 IR 94 at 95. Reader concerned an application to stay a decision of a single Judge pending the hearing and determination of an appeal.

In such a situation the single Judge has exercised the judicial power of the Commonwealth.  A Judicial Registrar is exercising the same power upon delegation and the nature of the power is no different.  It may be accepted that there are limits on the manner in which delegated judicial power may validly be conferred on a person who is not a Judge.  It is appropriate that there be a right to have reviewed by a Judge the exercise of the delegated power so that the Judge, undertaking the review, can exercise the power afresh.  However even when judicial power is exercised upon delegation, the determination of the delegate is conclusive unless and until the determination is set aside or varied by a Judge conducting a review.  Plainly the precise status of an order of a person exercising delegated judicial power would depend upon the legislative provisions under which it was made.  There may be provisions that alter or modify the status of an order of a delegate if an application for review is made.  In the present case, however, neither the Industrial Relations Act 1988 nor the Industrial Relations Court Rules purport to alter the status of an order of a Judicial Registrar when an application is made to review the exercise of the power which led to the making of the order. Indeed s376(4) of the Act requires the exercise of the power by a Judicial Registrar to be treated as having been exercised by a Judge. It is to be remembered that in Harris v Caladine (1992) 172 CLR 84 a number of the members of the High Court concluded that the order of the Registrar made under the scheme enabling delegation of judicial power in the Family Law Act 1975, was final and effective unless and until it was set aside: see Mason CJ and Deane J at 97, Brennan J at 104 and 106, Dawson J at 126 and Gaudron J at 154.

There is, in our opinion, no reason in principle why the same approach cannot be adopted when considering on the one hand whether an order made by a Judicial Registrar should be stayed pending a review or, on the other, whether an order made by a Judge should be stayed pending an appeal. The review is part of a process enabling a Judge to supervise the exercise of delegated judicial power. However the effectiveness of the supervision is not diminished if the same approach is adopted. If applied by a Judge when considering whether to stay an order pending the review, it will, as we shortly discuss, involve the exercise of a broad discretionary power. While it was not an issue addressed by the parties, the statutory source of that power is the provision in s377(2) where reference is made to the Court making “whatever order it considers appropriate in relation to the matter”: as to an appeal from a single Judge, see 0rder 52 rule 17.

Recently, Marshall J in Stephen Earlsford Potter v Pilot Freight Pty Ltd, (“Potter”), VI 4943R of 1995, 1 July 1996, unreported, considered the relevant principles to apply where the Court is asked to stay an order made by a Judicial Registrar pending the hearing and determination of a review.  At 7, his Honour said:

“In my view, decisions and orders of Judicial Registrars are decisions and orders of the Court in every sense of those words.  They must be complied with in the absence of a stay order pending a review.  No materially different consequences should, in my view, apply merely because a Judge is considering an application to stay an order made by a Judicial Registrar rather than made one by a Judge.  Upon the regular serving and filing of a notice of motion seeking a review of an exercise of power by a Judicial Registrar, that exercise of power manifested in the order of the Judicial Registrar is not to be treated as if it was never made.”

We agree with the views of Marshall J as set out above in Potter.

The principle applied by the trial judge as governing the exercise of his discretion in this matter is consistent with the approach recently adopted by a Full Court of the Federal Court of Australia in Powerflex Services Pty Ltd A.C.N 007 302 810 & Ors v Data Access Corporation Registration No. 508 968, VG 295 of 1996, Burchett, Heerey & Whitlam JJ, 4 June 1996, unreported, where the Court held that it must be satisfied that “the applicant for a stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour”.  It thereby followed the decision of the Court of Appeal in New South Wales in Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685, 694.

The only reported case of which we are aware in which the Court has considered the question of a stay of a Judicial Registrar’s decision is the decision of Keely J in Bysouth v Tawlord Nominees Pty Ltd (1995) 60 IR 446 (”Bysouth”).  At 449, Keely J said:-

“The respondent employer's alternative contention (set out at the beginning of these reasons) was that it would be ‘contrary to equity, law and principle that [the employer should] be ordered to make good the other party's relief before the issues between the parties are judicially determined by the Court in its original jurisdiction.’

Having considered that submission together with those advanced by counsel for the applicant employee, in my opinion the proper course in all the circumstances is to order that the amount of $6,000, ordered by Judicial Registrar Fleming on 28 February 1995 to be paid to the applicant, be paid by the respondent employer, on or before 4 July 1995, to the Registrar of the Court to be held in trust in an interest bearing account pending the hearing and determination of this matter or further order.”

The reference by his Honour to “judicially determined” may only have been intended to be a reference to determination by a Judge.  We think it is likely that this is what his Honour was referring to.  If so, the observation is unexceptionable though, as we have just discussed, the fact that the determination by a Judicial Registrar involves the exercise of delegated judicial power, does not alter the immediate legal character of the order made.  If his Honour was intending to imply by using the expression “judicially determined” that a determination and order made by a Judicial Registrar has a status different to that made by a Judge, in terms of its immediate legal effect, then it is an approach with which we would not agree.

Consequently, we find that the trial judge did not apply a wrong principle in the exercise of his discretion not to grant a stay of the whole of the relevant monetary amounts.

The next question posed by the employer was:

“whether and to what extent the Judge relied upon inferences, or unsupported findings of fact, to support his exercise of discretion, and, if the former, the extent to which:

(i)these inferences are proper inferences based on the evidence before the trial Judge; and

(ii)the Court hearing this leave application can substitute its own inferences of fact in considering this leave application...”

It was submitted that the trial judge relied upon “two inferences” which he should not have taken into account. The first of those related to “hearsay affidavit evidence” regarding the ability of the men to re-pay any amount of compensation that may be ordered to be paid by them as a result of the review. The attack on the affidavit evidence of an articled clerk to that effect as “hearsay” is without substance. The affidavit in question was relied upon in opposition to a claim in an interlocutory matter and was not the subject of cross examination. See s75 Evidence Act 1995 which provides that:

“In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.”

See also Marshall v Main, Industrial Relations Court of Australia, VI 3910 of 1995, Marshall J, 25 July 1995, 4-5, unreported and Potter at 4.

In any event, evidence as to an individual’s capacity to re-pay an amount which a Court may order to be paid, is a relevant consideration in the exercise of the discretion of a Judge in determining whether or not to grant a stay of an order for the payment of a sum of money.  See Public Transport Corporation v Eames & Ors, Industrial Relations Court of Australia, VI 6073 of 1995, Full Court, 22 December 1995, 5-6, per North J, unreported.  Such evidence was also held to be relevant by Dawson J in Myer in the passage cited above and by Marshall J in Reader at 95 and in Potter at 7.  See also Kerrin v Leighton Contractors Pty Ltd (1986) 44 IR 246 at 248.

The second “inference” related to an observation by the trial judge that the occurrence of Christmas may have affected the capacity of Mr Stone to find other work after his termination.  We do not apprehend how an attack on this finding even if successful bears on the issue as to whether or not a stay should be granted and on what terms.

It was then submitted that the trial judge erred in the exercise of discretion by taking into account a factual error committed by the Judicial Registrar. It was pointed out by the employer that in respect of the $7,773 awarded against it in favour of Mr Norman, a sum of two weeks pay in lieu of notice by the employer at the time of termination was not deducted. We do not necessarily see that occurrence as a factual error of the Judicial Registrar. The obligation to provide payment in lieu of notice is founded in s170DB of the Act. There is no warrant for the deduction from any amount of compensation ordered pursuant to s170EE(3) of the Act, of any amount payable as a result of an employer fulfilling its obligations under s170DB of the Act. We agree with the following views expressed by Moore J in Clements v Lillian Kaneff Pty Limited (“Clements”), Industrial Relations Court of Australia, AI 0154R of 1994, 29 April 1995, at 7, unreported:-

“... If an employee’s employment is terminated then ordinarily the employee is entitled either to some notice of that fact or payment in lieu. The fact that in this case there was payment in lieu is not a matter, in my opinion, to be offset against compensation that otherwise is or might be awarded under s170EE for a termination which was not lawful.

The Act itself requires payment of an amount in lieu of notice. Indeed, one of the matters raised by the applicant in support of the compensation claimed is what is said to be the inadequacy of the notice or the payment in lieu of notice. Another matter that is raised of a similar character is the costs that have been incurred in bringing this application and the fact that those costs are not recoverable. Both the cost and the claimed additional notice to which it is said the employee might have been entitled are not, in my view, matters properly to be considered in assessing compensation under s170EE as they are matters otherwise specifically dealt with in the Act.”

It also submitted that a second factual error committed by the Judicial Registrar influenced the trial judge in his assessment of the stay application.  That error was alleged to be that the sum of $3,800 and not $1,407 was earned by Mr Norman from the time of his termination until 31 December 1995.  It does not appear from his reasons that the trial judge’s attention was drawn to the alleged error if it be one.  It is not a matter of such substance that would justify a Full Court interfering with the exercise of discretion by the trial judge.

The fourth issue raised by the employer was “whether the Court’s refusal to grant all of the stay sought has affected substantive rights”.  Merely because substantive rights may be affected by a refusal to grant, in full, a stay application, it does not follow that the exercise of discretion by a Judge has miscarried.  On its own this matter raises no consideration which would lead the Court to grant leave to appeal.

The final issue upon which the leave to appeal application was based was “in the circumstances is it desirable in the interests of justice that leave be granted”.  We answer this question in the negative.  It has not been shown that the trial judge applied the wrong test nor is the result of the exercise of his discretion such as  to demonstrate injustice or that his discretion otherwise miscarried.  Additionally, the trial judge’s decision is one which deals with an issue of the Court’s practice and procedure in respect of which leave to appeal should not be lightly granted.  See Adam P. Brown Male Fashion Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 at 177 and AB v National Crime Authority, Federal Court of Australia, VG 765 of 1995, Full Court, 3 July 1996, at 2 per Burchett & Whitlam JJ, unreported.

We dismiss the application of the employer for leave to appeal in each case.

COSTS

Solicitors acting for Mr Norman and Mr Stone sought costs pursuant to s347 of the Act.  In our view this is not an appropriate case for the award of costs.  Although not persuasive and unsuccessful the submissions of the employer cannot be said to have been unarguable such that the application for leave was made without reasonable cause.  See R v Moore; ex parte Federated Miscellaneous Workers Union (1978) 140 CLR 470, 473 per Gibbs J and Fitzroy Motors v Hyundai Automotive Distributors (1995) 133 ALR 445, 451.

Further, this is the first case in which a Full Court has been called upon to consider the principles which should apply in cases where a stay is sought of orders of a Judicial Registrar pending the hearing and determination of a review. This reinforces our view that costs should not be awarded against the employer.

EXTENSION OF TIME

The employer sought an extension of time within which to make the applications.  The applications should have been filed on or before 24 May 1996.  See Order 52 rule 3, Industrial Relations Court Rules.  It appears that they were filed on 29 May 1996 at least partly as a result of confusion as to exactly what it was that the employer’s solicitors were required to file.  The solicitors for Mr Norman and Mr Stone were put on notice on 22 May 1996 that the applications would be made.  In the circumstances, we consider it appropriate to extend the time for the filing of the applications for leave to appeal until 29 May 1996.

ORDERS

The orders of the Court will be, in each matter:

1.The time within which the application for leave to appeal may be filed be extended to 29 May 1996.

2.The application for leave to appeal be dismissed.

I certify that this and the preceding 20 pages are a true copy of the Reasons for Judgment herein of the Full Court.

Associate:  

Date:  1 August 1996

Counsel for the Applicant:       J. Hebron
Solicitors for the Applicant:     DeSilva Hebron

Counsel for the Respondent:       J. McCormack
Solicitor for the Respondent:     John McCormack

Date of hearing:               Written submissions were received in lieu of an oral hearing

Date of judgment:               1 August 1996