System Services Pty Ltd v Fryar
[1996] IRCA 414
•05 September 1996
DECISION NO: 414/96
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) SI 116 of 1994RR
SOUTH AUSTRALIA DISTRICT REGISTRY )
Appeal from a decision of a Judge of the Industrial Relations Court of Australia
BETWEEN: SYSTEM SERVICES PTY LTD
(Appellant)
AND: NEVILLE FRYAR
(Respondent)
JUDGES MAKING ORDER: Ryan, Lee and Madgwick JJ
PLACE: Adelaide
DATE: 5 September 1996
MINUTES OF ORDER
THE COURT ORDERS:
That the appellant have leave to amend its notice of appeal by inserting therein the following additional paragraph:
The Court having found pursuant to s. 170DE(1) that there was a valid reason for the termination of the employment of the applicant the within application ought to have been dismissed.
That the appeal be allowed.
That the judgment appealed from be set aside and the proceeding by way of review of the decision of Judicial Registrar Farrell of 17 October 1995 be remitted to a single Judge of the Court to be heard and determined according to law.
It is directed that before the proceeding be set down for hearing and determination in accordance with paragraph 3 of this order, the parties and their legal advisers attend before a Judge of the Court to demonstrate that they have made and exhausted all reasonable efforts to resolve the matters in issue between them by negotiation, mediation or otherwise without the need for judicial determination.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) SI 117 of 1994RR
SOUTH AUSTRALIA DISTRICT REGISTRY )
Appeal from a decision of a Judge of the Industrial Relations Court of Australia
BETWEEN: SYSTEM SERVICES PTY LTD
(Appellant)
AND: GRAEME SIMPSON
(Respondent)
JUDGES MAKING ORDER: Ryan, Lee and Madgwick JJ
PLACE: Adelaide
DATE: 5 September 1996
MINUTES OF ORDER
THE COURT ORDERS:
That the appellant have leave to amend its notice of appeal by inserting therein the following additional paragraph:
The Court having found pursuant to s. 170DE(1) that there was a valid reason for the termination of the employment of the applicant the within application ought to have been dismissed.
That the appeal be allowed.
That the judgment appealed from be set aside and the proceeding by way of review of the decision of Judicial Registrar Farrell of 17 October 1995 be remitted to a single Judge of the Court to be heard and determined according to law.
It is directed that before the proceeding be set down for hearing and determination in accordance with paragraph 3 of this order, the parties and their legal advisers attend before a Judge of the Court to demonstrate that they have made and exhausted all reasonable efforts to resolve the matters in issue between them by negotiation, mediation or otherwise without the need for judicial determination.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
Appeal from a decision of a Judge of the Industrial Relations Court of Australia
SI 116 of 1994RR
BETWEEN: SYSTEMS SERVICES PTY LTD
(Appellant)
AND: NEVILLE FRYAR
(Respondent)
SI 117 of 1994RR
BETWEEN: SYSTEM SERVICES PTY LTD
(Appellant)
AND: GRAEME SIMPSON
(Respondent)
CORAM: Ryan, Lee and Madgwick JJ
PLACE: Adelaide
DATE: 5 September 1996
REASONS FOR JUDGMENT
THE COURT: At the outset of the hearing of this appeal, Counsel for the appellant sought leave in the light of yesterday's judgment of the High Court in Victoria and Others v The Commonwealth (unreported 4 September 1996) to amend the notice of appeal to add the following ground:
The Court having found pursuant to s. 170DE(1) that there was a valid reason for the respective terminations of the employment of the applicants the within applications ought to have been dismissed.
In the joint judgment of Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ in Victoria v The Commonwealth it was held, at 57:
The provisions in ss 170DE and 170EDA creating the "harsh, unjust or unreasonable" criterion go beyond the terms of the Convention to a constitutionally impermissible degree. However, they are structurally severable from the remainder of the Division. The operation of the remainder of the provisions of the Division will not be affected by their severance. Section 170DE(1), which accords with the Convention, can operate unaffected by the invalidity of s 170DE(2), which does not. Similarly, s 170EDA(1)(a), read down to exclude references to s 170DE(2), will implement the terms of Art 9 of the Convention despite the invalidity of par (b) in that sub-section. Hence the stated purpose of the Parliament in enacting the Division will not be affected.
Accordingly the High Court declared that ss. 170DE(2) and 170EDA(1)(b) in Div 3 of Pt V1A of the Industrial Relations Act 1988 (Cth) ("the Act") are invalid. Since the orders of von Doussa J of 10 May 1996 which are the subject of these appeals were squarely and exclusively based on s. 170DE(2) of the Act, this Court is bound by yesterday's judgment of the High Court to allow the appeal. However, it is clear from his Honour's reasons and what we have been told by Counsel for the parties to the appeals, that the review before his Honour was conducted in the way in which it was on the common understanding that s. 170DE(2) was available as a basis for the relief claimed by the present respondents as applicants. In those circumstances we consider it appropriate to remit the proceedings to a single Judge of the Court to afford the applicants an opportunity, if so advised, to agitate the contention which they had pursued before the Judicial Registrar that there had been no valid reason for the termination of their employment. Counsel for the appellant did not oppose this course.
In the light of the fact that this litigation in which the maximum amount at issue is $38,292.40 has already involved two hearings before a single Judge and two appeals to a Full Court, we reiterate the exhortation made in the course of the hearing that the parties should make every effort to avoid the expense and delay of further litigation. That concern is reflected in paragraph 4 of each of the orders made this day.
I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of the Court.
Associate:
Date:
Counsel for Appellant : Mr G.D. Cappola
Solicitors for Appellant : Kelly & Co
Counsel for Respondents : Mr J.R. Rau
Solicitors for Respondents : Johnston Withers
Date of Hearing : 5 September 1996
Date of Judgment : 5 September 1996
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