R v Watling, R J; Ex Parte - [1998] TASSC 141

141/1998

PARTIES:  R
  v
  WATLING, R J

HUON FOOD PROCESSORS PTY LTD; ex parte

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M221/1998
DELIVERED:  18 November 1998
HEARING DATE/S:  12 November 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Statutes - Acts of Parliament - Operation and effect of statutes - Retrospective operation - Amending acts - Not to affect rights or liabilities fixed by reference to past events - Conferring jurisdiction with respect to existing rights and liabilities - Procedural only.

Minister for Home and Territories v Teesdale Smith and Others (1924 - 1925) 25 CLR 120, applied.
Dowler v Princes Securities Pty Ltd [1971] 1 SASR 578, followed.
Industrial Relations Act 1984 (Tas), s29(1A).
Aust Dig Statutes [76]

REPRESENTATION:

Counsel:
             Prosecutor:  A R Spence
             Respondent:  P W Turner
             Minister for Justice & Industrial Relations:   P W Turner
Solicitors:
             Prosecutor:  Page Seager
             Respondent:  Director of Public Prosecutions
             Minister for Justice & Industrial Relations:   Director of Public Prosecutions

Court Computer Code:
Judgment ID Number:  141/1998
Number of pages:  5

Serial No 141/1998
File No M221/1998

THE QUEEN v R J WATLING,
ex parte HUON FOOD PROCESSORS PTY LTD

REASONS FOR JUDGMENT UNDERWOOD J

18 November 1998

This is the return of an order nisi for a writ of prohibition. The prosecutor, Huon Food Processors Pty Ltd, seeks an order prohibiting Commissioner R J Watling of the Tasmanian Industrial Commission, from determining two applications for a hearing in respect of an industrial dispute. The applications were made by Elizabeth Ann Rickards and her husband, Robert John Rickards, pursuant to the Industrial Relations Act 1984, s29(1A).

The facts

Two affidavits were read on the return of the order nisi. There was no dispute about the evidence they contained. Mrs Rickards, with the help of her husband, carried on the business of Huon Heritage Desserts, which manufactured baked fruit crumbles for distribution on the wholesale market. In October 1996, a consortium of business people purchased this business from Mrs Rickards. The purchase was completed in December 1996 and thereafter the business was carried on by the prosecutor. As part of the purchase agreement, Mrs Rickards held 10 per cent of the shares of the prosecutor and was to become one of its directors.
The other directors of the prosecutor wanted Mrs Rickards and her husband to stay in the business, so it was agreed that she would be employed as "a consultant" and be paid $400 per week. Mr Rickards was employed on a casual basis. It seems that, pursuant to this arrangement, Mrs Rickards and her husband continued to work in the business, more or less in the same way as they had done before it was purchased by the prosecutor. Mrs Rickards claims that she worked many hours in the business and her husband also claims that he worked many hours of overtime. Some time in the early part of this year, relations between Mrs Rickards and the other directors of the prosecutor soured. There were arguments about…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Watling, R J; Ex Parte

Details

AGLC: R v Watling, R J; Ex Parte [1998] TASSC 141
Case: [1998] TASSC 141
Decision Date: 18 November 1998

CaseChat Overview and Summary

The case of R v Watling, R J; Ex Parte Huon Food Processors Pty Ltd was heard in the Supreme Court of Tasmania. The dispute involved the prosecutor, Huon Food Processors Pty Ltd, seeking an order to prohibit Commissioner R J Watling of the Tasmanian Industrial Commission from determining two applications for a hearing in respect of an industrial dispute. The applications were made by Elizabeth Ann Rickards and her husband, Robert John Rickards, under the Industrial Relations Act 1984, s29(1A). The central issue before the court was whether the Tasmanian Industrial Commission had jurisdiction to determine the applications in question.

The court first considered whether an industrial dispute had arisen or was likely to arise within the meaning of the Industrial Relations Act. It was argued that no industrial dispute existed due to non-compliance with a specific clause in the Baking Industry Award. However, the court held that the determination of whether an industrial dispute had arisen was a question of fact for the Commissioner, and non-compliance with the Award's dispute resolution procedure did not preclude the existence of such a dispute. The court rejected the argument that compliance with the Award's procedure was a prerequisite for the existence of an industrial dispute.

Secondly, the court examined whether the Tasmanian Industrial Commission had jurisdiction over claims made prior to the commencement of the amended section 29(1A) of the Industrial Relations Act. The prosecutor argued that the amendment did not apply retrospectively and therefore the Commission lacked jurisdiction over pre-amendment claims. The court disagreed, finding that the amendment related to procedural changes rather than substantive rights or liabilities, and thus did not have retrospective effect. The court concluded that the amended section applied to the entirety of the claims made by Mr and Mrs Rickards.

In conclusion, the order nisi was discharged, and the Tasmanian Industrial Commission was found to have jurisdiction to determine the applications. The court's decision affirmed the Commissioner's authority to proceed with the hearing of the industrial dispute claims.

Orders