Toop v Commonwealth

[1995] IRCA 188

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  VI 2818 of 1994
VICTORIA DISTRICT REGISTRY

B E T W E E N:

CAROL JUDITH TOOP
Applicant

A N D

COMMONWEALTH BANK OF AUSTRALIA
Respondent

Reasons for Judgment - delivered ex tempore

3 May 1995  PARKINSON JR

This matter was listed for hearing before a judicial registrar at a directions hearing on 7 March 1995.  At that directions hearing various orders were made by consent between the parties in relation to affidavits and discovery. Judicial Registrar Ryan set the matter down for hearing of the application on 3 and 4 May 1995.   The application thus came on for hearing before me, together with various motions on notice this day.

By application made by notice of motion filed only on 28 April 1995, the respondent seeks orders including an order pursuant to S378 (1) of the Industrial Relations Act the judicial registrar determine that it is not appropriate for her to determine the application. No application had been made pursuant to S378(2) of the Act at the time of the hearing of the matter commencing this day. Further orders are sought in relation to additional interlocutory steps, including the provision of a statement of claim and defence, and additional discovery.

The basis for the application pursuant to S378 (1) was the material contained in the affidavit of Erica Edmands which was sworn on 28 April 1995. This material in so far as is relevant to this aspect of the notice of motion raised that the application and any determination of it involved matters concerning:

1.      the consideration of part-time and full-time employment and
                  their relationship with maternity leave provisions and   entitlements.

2.      That the issue of the meaning of the word “impracticability” of
                  an  order for reinstatement in S170EE(2) is raised squarely in
                  the proceedings, and that in the absence of a conclusive   decision by a full court as to the meaning of that word it is not
                  appropriate for a judicial registrar to proceed to determine this
                  application.

3.      That a further notice of motion raised pursuant to S170EB that
                  there exists an adequate alternative remedy available to the
                  applicant in these proceedings, and that this issue required
                  determination by a judge and was not a power delegated to the
                  judicial registrar pursuant to Order 74 consistent with S376 of
                  the Act.

In so far as the first of these matters is concerned, I am not satisfied that this gives rise to a basis upon which I ought determine that this is a matter not appropriate to be heard by a judicial registrar. Proceedings pursuant to S170EA of the Act inevitably involves the judicial registrar in a process of considering and balancing the various obligations that exist between parties to determine questions arising under S170DE(1) or (2) including questions of harsh unjust or unreasonableness. These issues are the very matters which the parliament has enabled the court to delegate to judicial registrars.  Further, the judges of the court have delegated those powers to determine those matters pursuant to Order 74 of the Rules of Court. Most matters relating to alleged unlawful termination bring into issue before the court questions as to the respective rights and obligations existing between the parties in the course of the employment. In this regard I am not satisfied that there is any aspect of these proceedings which was so unusual as to warrant the exercise of the consideration pursuant to S378(1) of the Act.

In so far as the second matter is concerned I am of a similar view for the reasons I have expressed above. The question of impracticability is one which is dealt with daily by judicial registrars in this court. To paraphrase a well known quote “it is not a term of art”.  In my view the determination of the question of impracticability is one for the judicial registrar or judge at the particular time objectively having regard to the particular facts and circumstances of the matter.  Further whilst there has not been a full court decision in relation to the meaning of the expression “ impracticable”
in S170EE(2) nevertheless there have been a number of decisions of the court where the meaning of the term has been considered. I am of the view that the approach I have identified above is consistent with those decisions.

See in this regard the decisions of the court in Liddell v Lembke (t/as Cheryl’s Unisex Salon) (1995) 127 ALR 342 and Nicolson v Heaven & Earth Gallery Pty Ltd. (1994) 126 ALR 233.

The third aspect of this motion is that there exists in the Human Rights and Equal Opportunity Commission (“HREOC”) an adequate alternative remedy for the applicant in these proceedings. 

Having regard to the decision of the full court in Liddell’s case  I am not satisfied that the HREOC is an adequate alternative remedy.  In  particular the nature of the application made before this court involves not only issues as to matters arising under S170DF(1) (f) and (g)  but issues of valid reason and harsh, unjust and unreasonable, unlike the HREOC which is confined in its determinations to issues of whether there has been unlawful discriminatory conduct.

Further the decision of the High Court of Australia in  Brandy v Human Rights and Equal Opportunity Commission (1995) 127 ALR 1 is clear in its authority that the HREOC does not have powers in respect of enforcement of its own orders or decisions. I do not consider that issues of enforcement fall within the category of those matters which were described by Spender J in ASU v Gold Coast Community Options Association Inc. (1994) 124 ALR 505 as being procedural and not necessarily determinative of the issue of adequate alternative remedy.

For these reasons the HREOC is not an adequate alternative remedy as contemplated by S170EB.

I turn now to consider the further interlocutory orders sought by the respondent.

It is submitted by the respondent in support of the application for further orders that the respondent is not in a position to know the nature of the case it has to meet.  I do not accept that this is the case.  The applicant in filing the application complied with the requirements of Order 75 of the Rules of Court. The respondent has been fully informed by way of affidavit material of the nature of the factual case it is to meet. This matter has been the subject of a directions hearing, conciliation before the Australian Industrial Relations Commission and numerous oral and written exchanges between the parties.  Whilst both parties rely upon orders having been made by Ryan J.R., it appears that the parties agreed in terms to the nature of the orders in relation to exchange of documents and affidavits at the directions hearing on 7 March 1995.

Counsel for the respondent raises issues of natural justice in relation to the further materials sought.  What is sought is a statement of claim and orders for the filing of a defence. It was his submission that despite the extensive factual material contained in the affidavit of the applicant sworn and filed on 3 April 1995, the respondent is not in a position to know how it is the applicant alleges there was an unlawful termination pursuant to the terms of the Act.  The applicant’s counsel has clearly stated in the proceedings that the applicant relies upon S170DE(1) and (2) and S170DF(1)(f) and (g) of the Act and S170KA(4) and the various provisions of Schedule 14. This information has been in the knowledge of the respondent for a significant period of time. In this regard I have considered the matters in the affidavit of Anna Elizabeth O’Connor, solicitor for the applicant, sworn and filed on 2 May 1995.

Further the affidavit of Erica Edmands, solicitor for the respondent, sworn and filed on 28 April 1995 at paragraph 3 concedes that at least to some extent the issues in dispute in the proceedings have been identified, and there is reference to subsequent correspondence between the solicitors for the parties. At paragraph 7 of the affidavit the complaint is squarely put as one in relation to particulars of the allegations.

I have considered the approach which has been taken generally in proceedings pursuant to Division 3 Part VIA of the Industrial Relations Act and in particular the decision of Ryan J.R. in Giarrusso v Ampol Petroleum (Vic) Pty Ltd, an unreported decision of 29 November 1994.  The Judicial Registrar said in considering an application for an adjournment of proceedings :

“Parliament clearly intended (by its emphasis on reinstatement) that                  unlawful termination claims should be determined quickly. The
           delays and elaborate preparation accepted in major commercial
           litigation is not acceptable in these cases.” 

Ryan J.R. further considered a decision of Northrop J in Mahnken v Saunders Logging Pty. Ltd. Case No  TI-109/1994, 30 August 1994  wherein his Honour discussed the procedures that applied at that time, including conciliation, in respect of proceedings alleging  unlawful termination and said:

“ It should be obvious to the parties what the issues are between                them and it is only in the rarest of cases that the court will give   directions as to any further interlocutory steps such as pleadings                    and further affidavits. Normally arrangements will be made to have               a date fixed for hearing as early as possible.” 

In my view that extract from the decision of Northrop J is equally apposite in this matter. Whilst I appreciate that there can be no fixed rule in relation to interlocutory steps and that there may well be cases where a failure to make orders would accord prejudice to one or other of the parties, I am not satisfied that this is one of those cases. Having regard to all of these matters
I am not satisfied that the respondent will be prejudiced in the conduct of its case in the absence of any further interlocutory orders and I decline to make such orders.
I decline to make the orders sought in either of the notice of motions filed on 28 April 1995.

[Upon delivering judgment the Judicial Registrar heard further submissions and as a result made the following decision and rulings ( in transcript):

1. Application for costs by applicant refused.

1. Ruling in relation to power of a Judicial Registrar to entertain an     application under S170EB:

In relation to the power of a Judicial Registrar to make a decision in relation to a notice of motion alleging there is an adequate alternative remedy  I do reject the contention that the Judicial Registrar has no power to hear the motion.

1. Ruling in relation to exercise by Judicial Registrar of delegated        powers in respect of an application under S378(2):

I propose that the matter will be listed as it was anticipated for hearing tomorrow. I do not accept the submission of counsel for the respondent that the Court, in particular the Judicial Registrar, has not commenced to exercise powers in relation to the application. It is my decision that the application will proceed for hearing tomorrow.]

I certify that this and the eight (8) preceding pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson.

Associate:
Dated:   3 May 1995

Solicitors for the applicant:  Kenyons
Counsel appearing for the applicant:                  Mr W Friend

Solicitors for the respondent:  Freehill Hollingdale & Page
Counsel appearing for the respondent:               Mr D J O’Callaghan

Date of hearing:  3 May 1995
Date of judgment:  3 May 1995