Peter W. Jupp and Computer Power Group Limited CP Consultants Pty Ltd

[1994] IRCA 5

C A T C H W O R D S

PRACTICE AND PROCEDURE - trial - fixing of date - proposed amending legislation - motion seeking early trial of proceeding - applicant seeking to avoid effect of proposed amendments to legislation - whether court should consider effect of proposed changes to rights of parties.

INDUSTRIAL LAW - employer and employee - termination of employment - proposed amending legislation - proposed retrospective effect - whether court should fix trial early to avoid effect on rights of applicant.

Industrial Relations Act 1988 s. 170EA.
Industrial Relations Reform Act 1993

Hill v. C.A. Parsons & Co. Ltd. [1972] 1 Ch. 305.
Re Minister for Communications; Ex parte NBN Ltd. (1986) 14 F.C.R. 344.
Attorney-General (N.T.) v. Minister for Aboriginal Affairs (1987) 73 A.L.R. 33.
Ramsay v. Aberfoyle Manufacturing Co. (Aust.) Pty. Ltd. (1935) 54 C.L.R. 230.
Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty. Ltd. [1987] W.A.R. 190.
Willow Wren Canal Co. Ltd. v. British Transport Commission [1956] 1 W.L.R. 213
McGarry v. Boonah Clothing Pty. Ltd. (1988) 49 I.R. 66

PETER W. JUPP V. COMPUTER POWER GROUP LIMITED & ANOR.
NO. VI 141 of 1994

Judge:GRAY J.

Place:MELBOURNE

Date: 6TH JUNE 1994

IN THE INDUSTRIAL RELATIONS     )
  )
COURT OF AUSTRALIA             )         No. VI 141 of 1994
  )
VICTORIA DISTRICT REGISTRY )

B E T W E E N :

PETER W. JUPP
  Applicant

- and -

COMPUTER POWER GROUP LIMITED
  CP CONSULTANTS PTY. LTD.
  Respondents

JUDGE:     Gray J.

PLACE:     Melbourne

DATE: 6th June 1994

EX TEMPORE REASONS FOR JUDGMENT

On 12th April 1994, the applicant filed in this Court an application pursuant to s. 170EA of the Industrial Relations Act 1988, seeking remedies with respect to the termination of his employment. That section was inserted into the Act by the Industrial Relations Reform Act 1993, the relevant portions of which came into operation on 30th March 1994. It was on that very date that the applicant alleges that the termination of his employment occurred. The application reveals that the applicant claims to have been in receipt of an annual salary of $200,000 and he claims compensation under s. 170EE of the Act in the sum of one million dollars.

The respondent duly filed its notice of appearance on 29th April.  On 2nd May, an order was made referring the matter to the Australian Industrial Relations Commission for conciliation.  The directions hearing was then adjourned to 20th June.  On 19th May, a commissioner of the Australian Industrial Relations Commission certified that the commission was unable to settle the matter by conciliation.  On 31st May the applicant filed a notice of motion, which was made returnable today, seeking an early trial of the proceeding. 

In support of the notice of motion, the applicant relies on a news release, said to have been issued by the Minister for Industrial Relations and dated 30th May 1994.  The press release announces a number of proposed amendments to the legislation and it is probably appropriate that I should quote the effect of those proposed amendments from the press release itself:

"The unfair dismissal provisions will be modified in the following respects:

.for award employees compensation will be limited to a maximum of six months' salary.  This approach is similar to the limits on compensation in NSW and some other states;

.for non-award employees, the provisions will be available for employees on salaries up to $60,000 with maximum compensation limited to $30,000.  These arrangements will apply to fixed-term contracts where there is no termination or redundancy provision in the contract.  Trainees will continue to be exempted, and those employed under the new training wage arrangements will attract a similar exemption.  Fixed-term contracts are not excluded from unfair dismissal remedies in most state jurisdictions;

.the onus of proof will be modified to ensure that it is fairly shared by the employer and the dismissed employee. In the case of the employer the onus will apply in establishing valid reasons for dismissal.  Employees will bear the onus in all other respects;

.other technical changes will allow unregistered employer associations the same access to the Industrial Relations Court that they now have to the Australian Industrial Relations Commission; and

.a regulation-making power will also be provided to allow exemptions from the provisions to accommodate the special circumstances of daily hire employees in the building and construction industry."

Despite the minister's quoted statement that, "these modifications would remove the uncertainty amongst some employers about the new minimum standards," it must be said that the news release leaves great uncertainty as to the nature of the proposed amendments to the legislation.  In particular, it cannot be said with any confidence whether someone in the position of the applicant, that is to say someone on a salary in excess of $60,000 per annum, will have no right to claim at all, or will have a right to claim compensation up to $30,000.  Nothing is said as to whether such a person will or will not have a right to claim reinstatement or other remedies of a kind contemplated by s. 170EE of the Act. 

At the foot of the news release is the name of a "media contact".  The affidavit in support of the notice of motion indicates that the deponent made contact with the person so named.  I quote paragraphs 3 and 4 of the affidavit:

"3.On 31 May 1994 I telephoned Kate Hannon, the media contact for the Minister for Industrial Relations. She informed me, and I verily believe, that it is intended that the amendments to the Industrial Relations Act be made in the current session of the Federal Parliament and that the Act as amended come into operation on 30 June 1994.

1. Ms. Hannon further told me that the amendments are intended to operate to all actions in which judgment has not been given as at the time of its coming into operation."

I take those passages to mean that someone representing the minister has stated the intention of the minister to propose to parliament that whatever amendments be made come into operation on 30th June 1994 and affect all pending claims in the Court.  It is on this basis that the applicant seeks an expedited trial of his application.  He avowedly desires that the Court give him judgment before 30th June, to enable him to avoid the effect of any amendments such are as proposed.

It must be remembered that it is parliament which legislates and not a minister, nor a minister's media contact.  If it should turn out that parliament legislates to take away the rights of claimants whose claims are pending, parliament has the power to do so.  To do so would, of course, be a drastic step, especially if the taking away of rights were conditioned on a fact of such a fortuitous nature as whether judgment has been given in a proceeding or not.  It remains to be seen whether parliament is prepared to take this step.

One thing that must also be remembered is that the legislation to be amended was in force for only two months at the date of the news release.  The Court has had little opportunity to pronounce on the legislation as it exists.  If evidence is needed of the possibility of a change of mind, then those circumstances provide it.

Even on the assumption that parliament does legislate as the minister and the media contact have represented, the question still arises whether, in a case such as this, the Court should prefer the interests of the applicant to those of the respondent.  If the Court were minded to grant applications such as that brought on this notice of motion it would find itself in an impossible position.  There is no basis on which to choose between the interests of the applicants and the respondents.  Still less is there any basis on which to choose between the application of one applicant and those of others.  True it is that this applicant is the one who has brought his motion before the Court seeking a speedy trial.  If he were granted it, there is no reason why every other applicant who suspected that he or she might be affected by the proposed amendments should not apply also.  As a matter of physical resources, the Court could not deal with all of the applications which might conceivably be affected by the proposed amendments and give judgment in them all prior to 30th June.  If it cannot deal with all, there are sound reasons why it should not deal with any.

The granting of the application to expedite the trial would be an invitation to the respondent to delay and perhaps to filibuster.  Further, it would put pressure on the Court to give a quick, rather than a properly considered, judgment.  It would very likely require the re-organisation of the business of the Court.  If a judge could not be found who was free to deal with the application, then other matters would have to be unfixed, and this matter fixed for trial in preference to those.  Again, the Court has no basis on which it can decide as between the interests of the affected parties.  In the ordinary handling of the business of the Court, some order is required.

In addition, in the particular case, on the evidence, there are practical problems facing the respondent in being forced on for an early trial.  It appears from an affidavit filed on behalf of the respondent that the person who bears the title "Executive Director - Professional Services", who is alleged to have dismissed the applicant, is on holiday in Italy and not intending to return until 27th June.  When he does return, he will presumably return to his home in Perth.  I have been informed from the bar table that the respondent does not have his itinerary and is not able readily to make contact with him by telephone or facsimile.  In addition, it is said that the managing director, who is alleged to have engaged the applicant and to have made any representation about the duration of the applicant's service with the respondent, is on holiday in Perth and will not be returning until 18th June.  He will then have other commitments before the end of June, some of them not in Melbourne.

Ordinarily, matters such as the availability of witnesses would be considered in determining whether to fix a trial, or in determining whether to adjourn a trial already fixed.  They may not be decisive in the sense that a court may sometimes require a party to take steps to bring to the court people who would otherwise not be available there.  Such a decision depends on the circumstances of each case.  Fundamentally, however, the proposition must be accepted that natural justice is denied if one party is unable to call all of the witnesses it desires to call. 

Counsel for the applicant relied on a number of authorities in support of the proposition that the Court should proceed to give the applicant a trial now.  I propose to deal with them as briefly as I reasonably can. 

Hill v. C.A. Parsons & Co. Ltd, [1972] 1 Ch. 305, is readily distinguishable. It did not involve any re-organisation of the business of the court to suit one party. It was a case in which an employer had failed properly to determine a contract of employment, by giving adequate notice. The court granted an injunction restraining that employer from relying upon the inadequate notice which it had given. In my view, the case has no bearing on the present issue.

A closer connection is to be found in the judgment of the Federal Court of Australia in Re Minister for Communications; Ex parte NBN Ltd., (1986) 14 F.C.R. 344. That was a case which involved an application for a writ of mandamus against the Minister for Communications, directing him to deal with an application for a supplementary television licence. It was demonstrated to the court that there were proposals for the amendment of the relevant legislation, to do away with supplementary television licences. Obviously, the court was faced at the trial with a difficult decision as to whether it would grant a writ of mandamus which would very likely become futile, or whether it would refuse such a grant on the basis that the proposed legislation was likely to come into operation. In that case, the proposed legislation had passed all stages in the House of Representatives, had been received by the Senate from the House of Representatives and had been read a first and a second time in the Senate, with the debate then having been adjourned. There was some expectation that the debate in the Senate would resume in the week following the trial. In the result, the learned judge granted a writ of mandamus and made a further order suspending the operation of the order for a period of fourteen days, with liberty to either party to apply in the meantime for a further order.

That result involved an application of what was stated in the judgment to be "the proposition that the Court applies the law as it is in force when a matter is before the Court and in general does not speculate as to the future course of legislation".  Even though the learned judge recognised that it was appropriate to take into account the pending legislation, the principle which prevailed was that the court applied the law as it was, leaving it open to the parties to return if in fact the law were changed.

Some reliance also was placed upon the judgment of the majority of the full court of the Federal Court of Australia in Attorney-General (N.T.) v. Minister for Aboriginal Affairs (1987) 73 A.L.R. 33, especially at pp. 50-53. That was a case in which an administrative decision was challenged on grounds which included the ground that the decision maker had wrongly taken into account proposed amendments to legislation. In the course of dealing with that question, the full court discussed a number of authorities concerning pending legislation. It quoted from Starke J in Ramsay v. Aberfoyle Manufacturing Co. (Aust.) Pty. Ltd. (1935) 54 C.L.R. 230, at p. 253 in the following terms:

"Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future."

Their Honours quoted from the dissenting judgment of Burt CJ in Re Minister for Minerals and Energy; Ex parte Wingate Holdings Pty. Ltd. [1987] W.A.R. 190, at p. 194 as follows:

"The courts are charged with the high responsibility of administering justice according to the law as it is.  A party invoking the jurisdiction of the court must be permitted to seek his justice upon that basis and the court cannot deny him that right because of a reasonable expectation that at some future date the law will be changed and with that change that his rights according to law will be changed.  It may well be that his victory, should he enjoy one, will be Pyrrhic.  If it is, then so be it.  That is a matter for him."

Their Honours also referred to what Upjohn J said in Willow Wren Canal Carrying Co. Ltd. v. British Transport Commission [1956] 1 W.L.R. 213 at pp. 215-216:

"...sitting in this court, it is my duty to see that litigants have their cases tried, as they are entitled to, and that I cannot take into account the possible effect of some Bill now before Parliament which, if passed into law in its present form may have some effect on the rights of the parties.  That seems to me to be a correct formulation of the law.  This court is not concerned with what Parliament may think it wise to do in relation to the rights of the parties, but the plaintiffs are entitled to come to this court and say, "In the "normal course of events our action will very soon be ripe for "hearing.  We desire that the court should hear it."....  But it is plain that it is not right for this court either now or at the hearing to take into account the possible effect of some Bill at present before Parliament which, so far as this court is concerned, may never be passed into law at all, or, if passed into law, may ultimately contain provisions which do not affect the rights of the parties before the court at all. In other words, it is a matter of speculation on which this court will not embark as to whether a Bill at present before Parliament will be passed into law in its present form."

I may perhaps echo those comments with even more strength in the case of a proposal for a bill, which is not presently before the parliament.  Reference should also be made to McGarry v. Boonah Clothing Pty. Ltd. (1988) 49 I.R. 66, at pp. 77-78, in which I discussed the question whether it was appropriate to adjourn a case to enable some change in the law to be effected, which would change the respective rights of the parties. I held that it was not so appropriate. That conclusion seems to be in line with all of the authorities referred to in Attorney-General (N.T.) v. Minister for Aboriginal Affairs (above).

There is no distinction drawn in those authorities between applications by respondents and applications by applicants for adjournments.  In either case, the courts have refused to adjourn cases to enable either party to take advantage of proposed changes in the law.

Counsel for the applicant also relied on the decision of Toohey J. in Re Media Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd. [No. 2] (1993) 67 A.L.J.R. 631. That decision can be distinguished. It involved a question of the stay of the operation of an award to preserve the right of a party to challenge its validity.

Neither counsel was able to cite to me a case in which a court has acceded to an application to bring forward the trial and judgment of a proceeding in order to enable a party to avoid the consequences of impending or proposed legislation.  There is, in other words, no authority in point.  The matter should be decided, in my view, by the application of the general principle that courts apply the law as it is.  The application of that principle dictates that no special step be taken to avoid the proposed amendments.  The court should not bring a case forward to assist an applicant any more than it would delay it to assist a respondent.

In my view, for those reasons, the applicant's motion must be dismissed. 

The order of the Court will be that:

(1) The motion the subject of the notice of motion filed on 31st May 1994 be dismissed.

(2)The directions hearing on 20 June 1994 is vacated.

(3)The applicant file and serve contentions of fact and law on or before 14th June 1994.

(4)The respondent file and serve contentions of fact and law on or before 4th July 1994.

(5)The directions hearing be adjourned to 4th July 1994.

Counsel for the applicant:     Mr. L. Kaufman and Mr. B. Lacey.

Solicitors for the applicant:       Macmillan, Segal & Lenton.

Solicitors for the respondents: Arthur, Robinson & Hedderwicks.

Date of Hearing:     6th June 1994
Date of Judgment:    6th June 1994

I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment of his Honour Justice Gray.

Associate:

Date: