Tom Lefkovic and Melrose Mining Nl

[1994] IRCA 95

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI1806 of 1994

BETWEEN:

TOM LEFKOVIC
Applicant

AND

MELROSE MINING NL
Respondent

REASONS FOR JUDGMENT

20 October 1994  Judicial Registrar Fleming

Mr Levin made an initial application that the Notice of Motion filed 20 October 1994 and served on him late on 20 October 1994 not proceed pursuant to Order 19 Rule 1 as it had not been supported by an affidavit.  Mr Wood neither objected or consented to that application, rather Mr Wood submitted that he had a preliminary application about the jurisdiction of the judicial registrar to hear and or make directions.

Mr Wood referred to the new rules. He referred to the Application filed on 5 October 1994 pursuant to s.170EA of the Industrial Relations Act 1988 (“the Act”) and submitted that the application was not in compliance with Order 4 and furthermore that there was no jurisdiction to hear this matter under s.170EA because it was outside the jurisdictional limit of the court. Paragraph 3 of the Applicant’s application refers to payment of wages for a period in excess of 18 months and the employee was on a salary of approximately $52,000.00 per annum.

Mr Wood referred to Order 74 Rule 2 and submitted that the Judicial Registrar could deal with the whole claim or not at all and given that the whole claim was outside the jurisdictional limit it was submitted that the Judicial Registrar had no power to deal with the claim.  Mr Wood further submitted that the Respondent could not consent to any granting of jurisdiction to the Judicial Registrar at the directions hearing.  He submitted that the Applicant had three alternatives;

1.Consent to a limitation in paragraph 3 limiting the Applicant’s claim to $10,000.00;

2.Strike out paragraph 3 altogether; or

3.Discontinue this proceeding and start again and that the Respondent would agree not to bar any further application made.

Mr Wood further submitted that the Judicial Registrar had no power to amend the application.

Mr Levin made submissions that the defects in the application were a matter of form and not substance and that it was the spirit of the convention that the termination of employment requires this court to have regard to dispensing of justice. Mr Levin referred to s.170EA in this regard. Mr Levin made the submission that s.466 of the Act granted the power to the court, in sub-section (g), to make an order exempting a party to the proceeding in the court from compliance with a provision of the rules of court. Mr Levin further submitted that pursuant to Order 72 Sub-rule 2 all the powers of the court and all the powers that may be delegated to a Registrar under s.466 of the Act are delegated to each Judicial Registrar.

In his reply Mr Wood submitted that the pleadings have closed pursuant to Order 11 and accordingly there is no power to amend and furthermore although Order 13 permits amendment by the court at any stage of any proceedings s.361(3) defines the court as consisting of a Chief Justice and as many other judges as hold office under this Act.  Mr Wood submitted that as this subsection does not refer to Judicial Registrars that therefore Judicial Registrars are not within the definition of the “Court”.  Mr Wood referred to the decision in Canceri and a decision of the High Court for which, he was unable to give the citation.

I do not agree with Mr Wood’s submissions that the Judicial Registrar has no power to determine this matter and I refer to the submission of Mr Levin that based on Order 72 Rule 2 that all the powers that are delegated are delegated to the Judicial Registrar, furthermore, although what is claimed by the Applicant is outside the “monetary” limit of the Court, the court, which includes Judicial Registrars has jurisdiction to hear the proceedings but any award of compensation made must be limited in accordance with the Act. I propose to rule that there is jurisdiction to proceed and I will give the parties an opportunity to make submissions as to further directions.

I certify that this and the preceding one (1) page are a true copy of the reasons for judgment of Judicial Registrar Fleming.

Associate:

Dated:  

Solicitors for the Applicant: Counsel for the Applicant:	Mr Levin
Solicitor appearing for the Respondent:	Mr Wood
Dates of hearing:	21 October 1994
Date of Judgment: