Timothy Warren Sutcliffe v General Motors-Holden's Automotive Limited

[1997] FCA 669

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - application for stay of order of Judicial Registrar reinstating employee - employee in receipt of workers’ compensation payments - whether employee prejudiced by stay of reinstatement order

Workplace Relations Act 1996 s 377

TIMOTHY WARREN SUTCLIFFE v GENERAL MOTORS-HOLDEN’S AUTOMOTIVE LIMITED
SG 61 of 1997

MARSHALL J
ADELAIDE
25 JULY 1997

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY  )          No. SG 61 of 1997
  )
GENERAL DIVISION  )

BETWEEN:             TIMOTHY WARREN SUTCLIFFE
  Applicant (Employee)

AND:             GENERAL MOTORS-HOLDEN’S
  AUTOMOTIVE LIMITED
  Respondent (Employer)

JUDGE:        MARSHALL J
PLACE:        ADELAIDE
DATED:       25 JULY 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.The orders of the Judicial Registrar regarding remuneration lost and continuity of the employee’s employment are stayed pending the hearing and determination of the review.

2.The employer’s notice of motion of 23 July 1997 is otherwise dismissed.

3.The review shall be conducted on the transcript of the evidence and exhibits before the Judicial Registrar with a right in the parties to submit additional affidavit evidence in chief.

4.On or before 15 August 1997 the employer shall file and serve any affidavit, constituting the further evidence in chief of any witness on which it intends to rely at the trial additional to the evidence given before the Judicial Registrar.

5.On or before 5 September 1997 the employee shall file and serve any affidavit, constituting the further evidence in chief of any witness on which he intends to rely at the trial additional to the evidence given before the Judicial Registrar.

6.The trial will take place in Adelaide at 10.15 am on 17 September 1997, with 18 and 19 September 1997 being reserved.  

7.Liberty to apply on not less than forty-eight hours written notice to each other party.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY  )          No. SG 61 of 1997
  )
GENERAL DIVISION         )

BETWEEN:             TIMOTHY WARREN SUTCLIFFE
  Applicant (Employee)

AND:             GENERAL MOTORS-HOLDEN’S
  AUTOMOTIVE LIMITED
  Respondent (Employer)

JUDGE:        MARSHALL J
PLACE:        ADELAIDE
DATED:       25 JULY 1997

EX-TEMPORE REASONS FOR JUDGMENT

There are two notices of motion before the Court this morning. Each was filed by General Motors-Holden’s Automotive Limited (“the employer”). The first is dated 15 July 1997. It seeks a review of the judgment of Judicial Registrar L Farrell given on 25 June 1997. There is an automatic right in a party to an application dealt with by a Judicial Registrar to seek a review of the exercise of that power. See s 377 Workplace Relations Act 1996 and Shackley v Australian Croatian Club (1996) 141 ALR 736, 747 per North J.

On this notice of motion it is only appropriate to make orders for the conduct of the trial.   I do so in the orders which appear at the conclusion of these reasons for judgment.

The second notice of motion is dated 23 July 1997.  It seeks a stay of orders made by the Judicial Registrar on 22 July 1997.  In addition it seeks a review of the judgment delivered on 25 June 1997 and the orders given on 22 July 1997.  In my view that latter relief is repetitive of that sought in the first notice of motion and which is in effect relief as of right.

On 22 July 1997 the Judicial Registrar ordered that Timothy Sutcliffe (“the employee”) be reinstated within twenty-one days to the position in which he was employed prior to the termination of his employment by the employer.  An order was made for remuneration lost and also to preserve the continuity of the employment.  A stay of those two latter orders was not opposed by the employee.

The application to stay the employee’s reinstatement is supported by an affidavit sworn by Ralph Bönig, solicitor for the employer.  The affidavit makes the following relevant points:

• the employee was terminated as a result of an allegation that he had been guilty of misconduct with respect to a claim for workers compensation

• proceedings have been instituted in the Adelaide Magistrates Court against the employee in which he is charged with two counts of obtaining a payment of compensation by dishonest means and one count of dishonestly making a statement in connection with a claim for compensation

• the proceedings relate to the same alleged conduct as that which gave rise to the employee’s termination

• the complaint is listed for mention on 14 August 1997 and no trial date has been set, but the prosecution will proceed

• the employee is in receipt of weekly payments of income maintenance (“weekly payments”) until at least 19 September 1997 when his workers compensation matter next comes before the Workers Compensation Tribunal

• the employer has served a notice of discontinuance in respect of the employee’s entitlement to weekly payments

• the weekly payments constitute 80 per cent of the employee’s notional weekly earnings

• the employer is concerned that a conviction against the employee would be inconsistent with the continuation of the employment relationship

I am of the view that I should not stay the Judicial Registrar’s order for the employee’s reinstatement.  It is entirely unconvincing for the employer to allege that a conviction in the Magistrates Court would be inconsistent with the continuation of the employment relationship in the absence of such a conviction and before the trial of the relevant complaints.  Equally, the lack of a conviction is consistent with the continuation of an on-going employment relationship.  It is uncertain as to when the trial of the criminal proceedings will occur.  Conversely this Court is able to offer an early trial date of the review to the parties in a time frame in which I am informed by counsel that the parties are confident that the matter can be concluded.

Consequently, I am not satisfied that the employer has demonstrated a reason or an appropriate case to warrant the exercise of the Court’s discretion in its favour to grant a stay.  See generally Norman v Besser Industries (NT) Pty Ltd, IRCA, Full Court, 1 August 1996, unreported and the principles referred to therein.

The orders of the Court are as follows:

1.The orders of the Judicial Registrar regarding remuneration lost and continuity of the employee’s employment are stayed pending the hearing and determination of the review.

2.The employer’s notice of motion of 23 July 1997 is otherwise dismissed.

3.The review shall be conducted on the transcript of the evidence and exhibits before the Judicial Registrar with a right in the parties to submit additional affidavit evidence in chief.

4.On or before 15 August 1997 the employer shall file and serve any affidavit, constituting the further evidence in chief of any witness on which it intends to rely at the trial additional to the evidence given before the Judicial Registrar.

5.On or before 5 September 1997 the employee shall file and serve any affidavit, constituting the further evidence in chief of any witness on which he intends to rely at the trial additional to the evidence given before the Judicial Registrar.

6.The trial will take place in Adelaide at 10.15 am on 17 September 1997, with 18 and 19 September 1997 being reserved.  

7.Liberty to apply on not less than forty-eight hours written notice to each other party.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:       

Dated:            25 July 1997

Counsel for the Applicant:                 S Blewett

Representative for the Applicant:      AMWU

Counsel for the Respondent:             D Smith

Solicitor for the Respondent:             Fountain & Bönig

Date of hearing:  25 July 1997