Walker, Peter Murray and Anor Maclure, Richard and Anor

[1995] FCA 873

IN THE FEDERAL COURT OF AUSTRALIA                 ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                )  No G 3568 of 1995
  )     
GENERAL DIVISION  )     

BETWEEN:          PETER MURRAY WALKER and

ALAN EDWARD LEWIS
  Applicants

AND:                   RICHARD MACLURE

First Respondent

DAVID PATCH

Second Respondent

Coram:        Davies J.
Date:          18 October 1995
Place:         Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicants pay the first respondent's costs of the proceedings. 

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

IN THE FEDERAL COURT OF AUSTRALIA            ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY           )  No G 3568 of 1995
  )     
GENERAL DIVISION  )     

BETWEEN:          PETER MURRAY WALKER and

ALAN EDWARD LEWIS

Applicants

AND:                   RICHARD MACLURE

First Respondent

DAVID PATCH

Second Respondent

Coram:        Davies J.
Date:          18 October 1995
Place:         Sydney

REASONS FOR JUDGMENT

This application seeks an order that the certain orders made by Judicial Registrar Patch, who exercised his jurisdiction as a Judicial Registrar of the Industrial Relations Court of Australia, be set aside.  Also sought is a declaration that Judicial Registrar Patch had no power to make the orders which he made. 

The proceedings in the Industrial Relations Court concerned what was alleged to be an unfair dismissal of Richard Maclure by the Cessnock Workers Club Limited.  At the time the proceedings were commenced, the company was under administration
under Part 5 of the Corporations Law. Section 440D(1) of the Corporations Law provides:-

"440D(1)  During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:

(a)with the administrator's written consent; or

(b)with the leave of the Court and in accordance with such terms (if any) as the Court imposes."

It appears from the reasons for decision of Judicial Registrar Patch that when the matter commenced before him, a Mr Cleaves, who appeared for the Cessnock Workers Club Limited, informed him that the company's Board had appointed an administrator.  He also informed Mr Patch that the administrator had given permission in accordance with s.440D of the Act for the proceedings to continue.  There is before me an affidavit from a Mr Lewis, who is one of the administrators, to say that, having been informed of the proceedings, he informed Mr Cleaves of Cleaves Mellick and Gibbs that the administrators would allow the solicitors to continue to represent the company in the proceedings in the Industrial Relations Court.

Mr Lewis has now deposed that he was not aware that the Industrial Relations Court was not able to grant leave to proceed against the company.  He believed, in error, that the Industrial Relations Court was able to make such an order.  However, he believed that an order would not be made and that the hearing would not proceed. 

The hearing did proceed, nevertheless, as the Judicial Registrar understood that the administrator had given permission in accordance with s.44OD of the Corporations Law.  The Judicial Registrar ultimately made an order for the reinstatement of Mr Maclure and an order for the payment of lost remuneration.  Those orders have been taken out and sealed with the seal of the Industrial Relations Court.

Proceedings in this Court have now been brought with a view to obtaining a declaration that the decision of the Industrial Relations Court was null and void and an order that it be set aside. 

In my opinion, this Court has no jurisdiction to do that.  The Industrial Relations Court is a court of equal jurisdiction.  This Court, the Federal Court of Australia, has no power to make any order bearing upon or affecting the validity of a decision of the Industrial Relations Court. 

It was submitted that this matter was brought under s.447A Corporations Law which gives the Federal Court power to make such orders as it thinks appropriate as to how Part 5 of the Corporations Law is to operate in relation to a particular company. In my opinion, however, what is now sought does not fall under that provision. The Judicial Registrar made no decision under the Corporations Law. His decision was under the unfair dismissal provisions of the Industrial Relations Act 1988 (Cth). If there was any error in his decision, that error is susceptible of correction in accordance with the provisions of s.377 of the Industrial Relations Act.  That Act provides for a review by a single judge of decisions of Judicial Registrars in unfair dismissal cases.  In my opinion, there is no jurisdiction in this Court to set aside that which is a judgment of a court of equal status. 

If there were any arguable case for jurisdiction, I would not in the exercise of this Court's discretion make the order sought.  There is an appropriate remedy.  It is the remedy under the Industrial Relations Act and that is the remedy which should be pursued if any remedy is sought. 

Accordingly, the application must be dismissed.

The first respondent seeks costs on an indemnity basis.  However, I think the costs should be in accordance with the ordinary rules.  Indemnity costs are only awarded in special circumstances.  I need not deal with these circumstances.  They have been described in many decisions.  In the present case, I am not persuaded that what was done was done otherwise than in good faith.  I think the application to this Court was misconceived, but I do not think that that in itself is a sufficient ground for ordering indemnity costs.  So I shall simply order that the applicants pay the first respondent's costs of the proceedings.

I certify that this and the 3 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:   18 October 1995

Appearing for the applicants:  D. Glass

Solicitors for the applicants:  Gordon & Johnstone

Counsel for the 1st respondent:  M.A. Bradford

Solicitors for the 1st respondent:  Olliver Campbell Davidson
Appearing for the 2nd respondent:  S. Mancell

Solicitor for the 2nd respondent:  Australian Government Solicitor

Date of hearing:  18 October 1995
Date of judgment:  18 October 1995