Spencer v Baseball Queensland Inc

[1996] IRCA 434

DECISION NO: 434/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

No VI 96/1333R

B E T W E E N :

SPENCER

Applicant

AND

BASEBALL QUEENSLAND INC

Respondent

JUDGE:  North J
PLACE:  Melbourne
DATE:    15 July 1996

EX TEMPORE REASONS FOR JUDGMENT

On 25 March 1996, the applicant, Mr Spencer issued proceedings alleging that his employment with the respondent, Baseball Queensland Incorporated, was unlawfully terminated under s.170EA of the Industrial Relations Act.  On 28 May 1996, on the application of the respondent, Judicial Registrar Murphy made orders transferring this matter from the Victorian District Registry to the Queensland District Registry.  By a motion, notice of which was filed on 13 June 1996, the applicant sought to review the orders made by Judicial Registrar Murphy. 

The application for review raises the question of whether a review lies under s.377 of the Industrial Relations Act 1988 against an interlocutory order of a judicial registrar who has not yet commenced hearing the merits of the claim. In Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437 at 442, Gray J said:

“Thus, it is only when the judicial registrar has made a final order that review can be sought.  If this were not the case trials before judicial registrars could be interrupted constantly by applications to review rulings on the admissibility of evidence and every interlocutory decision of a judicial registrar could be the subject of a separate application for review.  That cannot have been the intention of Parliament.”

In Hitchcock v Warner Bros Movie World (1995) 130 ALR 337, at 342, Moore J said:

“I do not consider that parliament intended that s.377 was to provide a mechanism for the review of the exercise of any power by a judicial registrar in the course of hearing and determining an application concerning a matter referred to in s.376(1)(a) and (b).  .... If s.377 creates the right to have reviewed the final determination by a hearing de novo, then there is no obvious legislative purpose served by permitting the review of all powers exercised in the process of making that final determination, if the final determination, and any interlocutory decisions leading to it, can be exercised again by a judge.”

Those two authorities were followed by Marshall J in Nixon v Ord Minnett Limited (unreported, Industrial Relations Court of Australia, Marshall J, 14 March 1996).

Mr Shaw, who appears as counsel on behalf of the applicant, relied upon the decision of Northrop J in Keating v Teico Investments Pty Limited (1994) 57 IR 339, and a decision of the Chief Justice in CFMEU v BHP Refractories Pty Ltd (unreported, Industrial Relations Court of Australia, Wilcox CJ, 17 March 1995). He accepted that both those authorities limited the scope for a review of decisions of judicial registrars, in that the cases established there was no right to review decisions of a judicial registrar made in the course of the hearing and determination of a trial once commenced. However, he drew a distinction in respect of a decision of a judicial registrar made prior to the commencement of the trial of the application and contended that there was no such restriction against a review of a decision made in those circumstances. Neither of the cases referred to addressed this latter situation.

In my view, such a distinction in treatment is not borne out by the authorities.  The expressions of principle in Andrews and in Hitchcock refer to the underlying rationale of s.377, namely, that Parliament could not have intended that the course of a proceeding before a judicial registrar would be interrupted by reviews of interlocutory decisions made on the path to a final determination, whether made before or during the trial of the proceeding. The principle focuses upon the judicial registrar coming to a final determination, and the review attaches itself to the final determination as its point of operation.

The principle enunciated in Andrews and in Hitchcock support the conclusion that the review of the judicial registrar's decision in this matter is beyond jurisdiction. Mr Shaw did not refer to the decision of Wilcox CJ in Foxcroft v The Ink Group Pty Ltd (1944) 1 IRCR 215, in which his Honour said, at 217, in relation to s.377:

“It will be noted that the power of review is not limited to orders finally disposing of a claim. It extends to interlocutory orders.”

I prefer the approach taken in Andrews and Hitchcock.  In my view, the principle referred to in Andrews and Hitchcock provides a strong basis for holding that the right to review does not extend to interlocutory orders made prior to the commencement of the trial of the application. I therefore dismiss the application for review commenced by motion, notice of which was filed on 13 June 1996, and I will reserve the respondent's costs of the application. 

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of his Honour Justice North.

Associate:
Dated:           17 September 1996

Counsel for the applicant:               B. Shaw
Solicitors for the applicant:            Purves Clarke Richards

Solicitors for the respondent:          H. Vines, Dunhill Madden Butler

Date of hearing:  15 July 1996
Date of judgment:  15 July 1996  

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

No VI 96/1333R

B E T W E E N :

SPENCER

Applicant

AND

BASEBALL QUEENSLAND INC

Respondent

MINUTES OF ORDER

JUDGE:  North J
PLACE:  Melbourne
DATE:    15 July 1996

THE COURT ORDERS THAT:

1. The application for review, commenced by motion, notice of which was filed on 13 June 1996, is dismissed.

1. The respondent’s costs are reserved.  
   
   

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

C A T C H W O R D S

INDUSTRIAL LAW - Review of exercise of power of judicial registrar - Whether review available in respect of interlocutory order

Industrial Relations Act 1988 s.377

Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437;

CFMEU v BHP Refractories Pty Ltd (unreported, Industrial Relations Court of Australia, Wilcox CJ, 17 March 1995);

Foxcroft v The Ink Group Pty Ltd (1944) 1 IRCR 215;

Hitchcock v Warner Bros Movie World (1995) 130 ALR 337;

Keating v Teico Investments Pty Limited (1994) 57 IR 339;

Nixon v Ord Minnett Limited (unreported, Industrial Relations Court of Australia, Marshall J, 14 March 1996).

SPENCER -v- BASEBALL QUEENSLAND INC

No VI 96/1333R

Before:          North J
Place:            Melbourne
Date:             15 July 1996