ALASTAIR DUNHAM v. RANDWICK IMAGING PTY LIMITED [1994] IRCA 1 (27 May 1994)

The affidavit evidence refers to differences between Mr Dunham, on the one hand, and Mr Newman and some of "the partners", on the other, after his appointment as Chief Radiographer. I need not detail these differences. Counsel agreed it was unnecessary, for present purposes, to consider the merits of the positions taken by the protagonists. They were content that I note that there were differences about a number of issues and deal with the application for interim relief on the basis that there may have been some merit in each party's position in respect of them. However, it is important also to note that the number of complaints (justified or not) made to Mr Dunham about his work performance increased in the early months of 1994.

On 23 March 1994, Mr Newman told Mr Dunham that the practice had taken a decision to replace him and he could either resign or one or other party could give the other four to six weeks notice. Two days later, Mr Newman had a further conversation with Mr Dunham during which Mr Dunham told him he was "in no rush to leave and if it suits you I will stay on until you get a replacement and spend some time with him". Mr Newman thanked Mr Dunham for this offer and told him he would speak to the partners and let him know.

On 31 March Mr Newman gave Mr Dunham a letter that read as follows:

"We hereby confirm our verbal advice on 23 March 1994 and the various subsequent discussions that the Partners have decided to terminate your services as Chief Radiographer.

Notice was suggested at being 4 to 6 weeks. However, following further discussion with you we must thank you for your offer to assist in the induction of the new Chief Radiographer. Therefore we need to agree on a revised date of termination. We would like to suggest that final termination of your service occur one week after the commencement of the new Chief Radiographer - as yet to be appointed - or earlier at your request.

It is envisaged that this will enable the Practice to give you five weeks notice commencing from the appointment date of a successful replacement. We trust that this will meet with your approval."

In 8 April, the respondent appointed a new Chief Radiographer, to commence duties on 16 May 1994. On 12 April, Mr Newman gave Mr Dunham a letter informing him of this fact and stating:

"In accordance with our previous discussion and letter dated 31 March 1994, your offer to spend some time with your replacement is acceptable and appreciated by him.

Therefore, as agreed, we wish to notify you that your termination will take effect on Friday 20 May 1994 which will allow him to have spent one week with you before you leave."

On the following day, Mr Dunham initiated this proceeding by filing an Application under s.170EA of the Industrial Relations Act 1988 seeking the following relief:

"1. Declaration that the termination of my employment contravenes/will contravene Division 3 of Part VIA of the Industrial Relations Act , 1988.

2. Order that the employer refrain from terminating my employment.

3. Order that the employer pay me such compensation as determined by this Honourable Court.

4. Such further or other relief as this Honourable Court deems fit and proper."

The particulars under Order 75 rule 2 contained in the Application showed that the applicant sought "Reinstatement to position of Chief Radiographer or in the alternative a monetary amount yet to be quantified".

The matter came before me in a directions list on 18 May. The solicitor for the applicant informed me that his client wished to seek an interim injunction restraining the termination of his employment on 20 May. Counsel for the respondent indicated that his client disputed the power of the Court to grant such an injunction and would contend that, in any event and as a matter of discretion, the Court should not do so. In view of the urgency of the matter, I directed that the applicant's application for interim relief be heard on the afternoon of Friday, 20 May.

On 20 May, but prior to the hearing, the solicitors for the applicant sent a letter to the solicitors for the respondent notifying that they would seek the following interlocutory relief:

"1. That the respondent refrain from terminating the employment of the applicant as Chief Radiologist pending a further order of the Court;

2. In the alternative to paragraph 1 above, in the event the respondent terminates the employment of the applicant on 20th May, 1994 the respondent reinstate the applicant on and from 23rd May, 1994 to the position he held immediately prior to termination pending further order of the Court."

The evidence tendered at the hearing of the application for interim relief was confined to the affidavits of Mr Dunham and Mr Newman. As a result of the agreement mentioned above, neither counsel sought to cross-examine. The major issue at the hearing concerned the Court's power to grant interim relief, but counsel also put short submissions on the question whether, if there was power, the Court ought to grant relief. At the end of the argument, I refused the application for interim relief and said I would give my reasons later. I made an order that the matter be referred to the Australian Industrial Relations Commission for conciliation pursuant to s.170ED of the Industrial Relations Act.

In my reasons for judgment in another case, Siagian v Sanel Pty Limited, to be delivered at the same time as these reasons, I describe the contents of Part VIA of the Industrial Relations Act, which was added to the Principal Act by s.21 of the Industrial Relations Reform Act 1993; and especially Division 3 which relates to termination of employment. I need not repeat that description. However, I must refer to Subdivision C, governing remedies in respect of unlawful termination.

Section 170EA enables an employee, or an employee's trade union, to "apply to the Court for a remedy" in respect of termination of the employee's employment. The application must be made within 14 days after the employee receives written notice of termination or such further period as the Court allows: see s.170EA(3). There are provisions dealing with the situation if there is an adequate alternative remedy and in relation to conciliation of applications by the Industrial Relations Commission. Section 170EE provides:

"(1) After considering the merits of an application under section 170EA, the Court, unless satisfied that the termination of the employee's employment contravened no provision of this Division (other than section 170DD) may make such orders as it thinks appropriate in order to put the employee in the same position (as nearly as can be done) as if the employment had not been terminated.

(2) The orders the Court may make include, for example:

(a) an order declaring the termination to have contravened this Division;

(b) an order requiring the employer to reinstate the employee;

(c) an order that the employer pay compensation to the employee.

(3) However, the Court is not to order the employer to reinstate the employee if the Court is satisfied that the termination contravened no provision of this Division (other than section 170DB or 170DD).

(4) Nothing in section 170EC or in this section limits the Court's power to make an interim or interlocutory order in relation to an application under section 170EA."

Section 170EG states that a contravention of Subdivision B (the Subdivision that imposes restrictions on terminations of employment by an employer) is not an offence. Section 170EH provides:

"Section 431 does not apply to a contravention or proposed contravention of Subdivision B."

Part XIV of the Act, also added in 1993, establishes this Court. That Part contains provisions dealing with the constitution and management of the Court before dealing, in Division 5, with jurisdiction. Division 5 contains four Subdivisions, A to D inclusive.

Subdivision A of Division 5 deals with the original jurisdiction of the Court. It includes s.412(1)(a) which gives the Court "jurisdiction with respect to matters arising under the Act in relation to which applications may be brought to it under the Act". This jurisdiction includes jurisdiction to determine applications made pursuant to s.170EA of the Act. After referring to other heads of jurisdiction, the Subdivision provides by s.418 that, in every matter before it, the Court is to grant:

"all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided".

This section is almost identical to s.22 of the Federal Court of Australia Act 1976 relating to the jurisdiction of the Federal Court of Australia.

Section 419 of the Industrial Relations Act is identical to s.23 of the Federal Court of Australia Act. It reads:

"The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."

The scope of this power is a matter relevant to the present case.

Subdivision B (ss.420-428) of the Industrial Relations Act concerns the appellate jurisdiction of the Court. It is not presently relevant. Subdivision C is headed "General". It contains three sections: s.429 relating to contempt of Court (cf. s.31 of the Federal Court of Australia Act), s.430 conferring on the Court jurisdiction in associated matters (cf. s.32 of the Federal Court of Australia Act) and s.431, which has no equivalent in the Federal Court of Australia Act. This section provides:

"431. The Court may grant an injunction requiring a person not to contravene, or to cease contravening, this Act."

Subdivision D concerns appeals to the High Court of Australia.

In a thoughtful argument, counsel for the applicant examined the place in the legislation of four critical provisions: ss.170EE, 170EH, 419 and 431. It is convenient to deal first with ss.431 and 170EH.

Read alone, s.431 would empower the Court to restrain a proposed termination of employment that would contravene Subdivision B of Division 3 of Part VIA. The section is couched in wide terms. On its face, it extends to any contravention or proposed contravention of the Act, whether or not that contravention was, or would be, a criminal offence. The power is not limited to the grant of final injunctions. It would enable the Court to grant an interlocutory injunction restraining a proposed contravention. In his submissions, counsel for the applicant examined the purpose of s.431. He pointed out that, although s.431 itself is new, it precisely copies the terms of s.61 of the Industrial Relations Act, as originally enacted in 1988. At that time, the reference to "The Court" was a reference to the Federal Court, which exercised jurisdiction under the Act until 30 March 1994. Section 61 was repealed by the 1993 legislation. Counsel also pointed out that s.61 can be traced back to s.109(1)(b) of the Conciliation and Arbitration Act 1904, which was inserted in 1956 when the Commonwealth Industrial Court (later known as the Australian Industrial Court) was established.

Section 109(1)(b) was amended during its life, as recounted by Gray J in The Queen v Australian Teachers Union (No.2) (1993) 48 IR 109 at 111-112. By the date of repeal of the Conciliation and Arbitration Act, the paragraph empowered "the Court" (by then the Federal Court) "to enjoin an organization or person from committing or continuing a contravention of this Act or the regulations". In Medcraft v Federated Engine Drivers and Firemen's Association (1984) 8 IR 211 Gray J discussed the purpose of s.109(1)(b). He made the point that, traditionally, courts of equity would not grant an injunction to restrain the commission of a criminal offence. At 218 his Honour said:

"In time, this principle mellowed to the extent that the Attorney-General, of his own motion or on the relation of a private citizen, was held to be entitled to seek an injunction to enforce the criminal law. This right is based on the duty of the Attorney-General to safeguard the public interest. It is of comparatively modern use, and confined to cases where an offence is frequently repeated in disregard of an inadequate penalty, or to cases of emergency. See the Commonwealth v. John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 C.L.R. 39 at 49-50, where Mason J. cited Gouriet v. Union of Post Office Workers [1977] UKHL 5; [1978] A.C. 435. Side by side with the exceptional nature of this jurisdiction, there appears to have grown up a practice, based on Boyce v. Paddington Borough Council [1903] 1 Ch. 109, whereby a private citizen may claim an injunction where a breach of a public right is involved if that breach also involves a breach of a private right, or where the person making the claim suffers special damage not suffered by other members of the public. In the case of such special damage, it appears that no infringement of any private right is required. The precise nature of the special damage which must be shown to exist has been the subject of considerable debate. ... In recent authorities, such as Wentworth v. Woollahra Municipal Council [1982] HCA 41; (1982) 42 A.L.R. 69, there appears a trend towards recognition of a broader class of persons entitled to claim injunctions where breaches of statutes providing for criminal sanctions are involved."

Gray J remarked that, when s.109(1)(b) was first enacted:

"it, together with the former s.109(1)(a), was the sole express grant to a newly created court, the Commonwealth Industrial Court, of any power to grant injunctions".

"It may be that there are possible contraventions of the Act which would not amount to criminal offences. In such cases, where no other specific provision for interim restraining orders is made, the grant of an injunction under s.109(1)(b) may be appropriate. Similarly, the grant of an injunction at the suit of the Attorney-General against a persistent offender under the Act would probably fall within the power given by s.109(1)(b). In my view, the power now given to this Court by s.109(1)(b) does permit the grant of an injunction where the conduct alleged constitutes a criminal offence under some provision of the Act, and where the person seeking the injunction has suffered some special damage of the kind referred to above. In those circumstances, an interlocutory injunction may be granted upon the principles which normally apply to such relief."

Counsel submitted that these principles apply to the new s.431.

I think s.431 certainly covers the cases mentioned by Gray J, subject to any specific statutory exception; indeed, as will appear, I think the section extends further than his Honour suggested in relation to s.109(1)(b). But the difficulty in the present case is that there is a specific statutory exception; s.170EH expressly denies the application of s.431 to contraventions, or proposed contraventions, of Subdivision B of Division 3 of Part VIA. These are the provisions upon which the present applicant must rely in order to make out his case of unlawful termination. After some discussion about the matter, counsel accepted this. In the end, he abandoned reliance on s.431.

Although the matter is academic in the present case, because of s.170EH, it may be useful to indicate my view about the function of s.431.

In a work published in 1967, The Law of Land Development, I traced the winding path taken by the courts to that time in developing the notion that an injunction might be granted to restrain a threatened contravention of a statute: see 302-308. The landmark cases along the way are Institute of Patents v Lockwood [1894] AC 347, Attorney-General v T S Gill & Son Pty Ltd [1927] VicLawRp 3; [1927] VLR 22, Ramsay v Aberfoyle Manufacturing Company (Australia) Pty Ltd [1935] HCA 75; (1935) 54 CLR 230 and Cooney v Ku-ring-gai Municipal Council [1963] HCA 47; (1963) 114 CLR 582. Over the course of those four cases, the law moved from a situation where, in Lockwood, a unanimous House of Lords indignantly rejected the notion that a court could restrain a statutory contravention that constituted a criminal offence to one where Menzies J could say, in Cooney at 605:

"A proper case is, I think, made out when it appears that some person bound by what may be described as a municipal law imposing a restriction or prohibition upon the use of land in portion of a municipal area for the public benefit or advantage has broken, and will, unless restrained, continue to break that law for his or her own advantage and to the possible disadvantage of members of the public living in the locality. The wide discretion of the Court is an adequate safeguard against abuse of a salutary procedure."

Notwithstanding this momentous change, it will be observed that, even in Cooney, Menzies J saw a limitation on the power to grant an injunction to restrain the contravention of a statute - there must be some element of repetition. As Gray J pointed out in Medcraft, it is now necessary to add the alternative of emergency. But, subject to that, the requirement of repetition has not yet been abandoned; although it is probably fair to say that the courts do not require a high degree of repetition these days.

The development to which I have just referred took place in courts of general jurisdiction, the High Court of Judicature in the United Kingdom and the State Supreme Courts in Australia. Although the Commonwealth Industrial Court was established as a superior court of record (like the Federal Court and the Industrial Relations Court after it) it was a statutory court having jurisdiction only in respect of matters committed to it by legislation. The limitation of repetition apart, the Commonwealth Industrial Court was not free to assume a role of general enforcer of statutes.

As I see the position, the purpose of s.109(1)(b) of the Conciliation and Arbitration Act was to meet these deficiences in the capacity of the Commonwealth Industrial Court to enforce the Conciliation and Arbitration Act. The Court was granted an express power to make an order restraining a contravention of the Act and that power was not subjected to the limitations still applying to the judicially-developed injunction power available to courts of general jurisdiction.

When the Industrial Relations Act replaced the Conciliation and Arbitration Act the same need was felt; hence s.61 and, in due course, s.431.

So far as the evidence reveals, the termination of Mr Dunham's employment is an isolated contravention of Division 3 of Part VIA of the Industrial Relations Act by Randwick Imaging; if, indeed, its conduct does amount to a contravention. But that would not matter. Section 431 would cover the case, were it not for s.170EH.

Counsel next concentrated attention on s.419. As mentioned, this section is identical to s.23 of the Federal Court of Australia Act. That section was examined by the High Court of Australia in Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612. Deane J, with whom Mason CJ, Wilson and Dawson JJ agreed, described the section as one that confers on the Federal Court "a broad power to make orders of such kinds, including interlocutory orders, as it 'thinks appropriate'". He went on at 622:

"Wide though that power is, it is subject to both jurisdictional and other limits. It exists only 'in relation to matters' in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the 'kinds' of order, whether final or interlocutory, which are capable of properly being seen as 'appropriate' to be made by the Federal Court in the exercise of its jurisdiction."

In the present case, there is no difficulty about the first limitation. The matter in respect of which the power is sought to be exercised, the allegedly unlawful termination of Mr Dunham's employment, is within the jurisdiction of this Court. The difficulty arises out of the second requirement. Given the existence of s.170EH, can it be appropriate to make an interim injunction restraining the proposed termination? I think not.

The limits of s.23 of the Federal Court of Australia Act were pointed out in Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150. The issue in that case was whether the Federal Court had power to accept certain undertakings. The case was argued on the basis that the Court's power to accept undertakings was co-terminous with the Court's injunction power; and it was said that this power was limited to certain paragraphs in s.80(1) of the Trade Practices Act 1974. The Commission sought to justify the acceptance of the undertakings by reference to ss.22 and 23 of the Federal Court of Australia Act but its argument found no favour. At 161, Gibbs CJ, Stephen, Mason and Wilson JJ said:

"The Federal Court of Australia Act sets up the Federal Court and arms it with certain powers, e.g. ss.22 and 23. But generally speaking, and apart from s.32, the Act does not invest the Court with jurisdiction. It leaves it to the Parliament to do so by other statutes (s.19). This the Parliament has done by other statutes, such as the Trade Practices Act. When a specific statute which invests the Court with jurisdiction in matters of a particular class does so in such a way as to limit the power of the Court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court of Australia Act.

The provisions of that Act, correctly understood, do not empower the Court to grant injunctions restraining, or relating to, contraventions of the Trade Practices Act in situations falling outside the boundaries drawn by s.80 of that Act. Section 22 of the Federal Court of Australia Act is a 'Judicature Act' provision, designed to ensure that the Court can grant relief which is appropriate to both legal and equitable claims and to avoid multiplicity of proceedings. Its effect is to enable the Court to dispose of all rights, legal and equitable, in the one action, so far as that is possible ... It does not confer authority to grant an injunction in circumstances where a plaintiff has no case for relief by way of injunction under the general law or by statute. So also with s.23; it arms the Court with power to make all kinds of orders and to issue all kinds of writs as may be appropriate, but it does not provide authority for granting an injunction where there is otherwise no case for injunctive relief." [My emphasis]

This passage is not literally applicable to the Industrial Relations Court. In the case of the Industrial Relations Court, the statute that invests it with jurisdiction is the same statute as that which sets it up and arms it with powers such as ss.418 and 419. But the emphasised sentence of their Honours' reasons applies equally to this Court. When the statute (the Industrial Relations Act) that invests the Court with jurisdiction to determine unlawful termination claims limits (by s.170EH) the Court's power to grant relief of a particular kind (an injunction restraining an unlawful termination or proposed unlawful termination), it would not be "appropriate" to transcend that limitation by recourse to the general language of s.419. To do this would be to defy the legislative policy evidenced by s.170EH and to render that section otiose.

During argument counsel for the applicant accepted that he could not successfully rely on s.419. He fell back on s.170EE(4) which he suggested provided a source of power (perhaps the only source of power) to make the orders he sought. He said an interlocutory application to restrain a proposed contravention of Subdivision B was related to an application under s.170EA, since that was the section that authorised the principal proceeding. Accordingly, s.170EE(4), which preserves the Court's power to make an interim or interlocutory order in relation to an application under s.170EA, should be construed as conferring the necessary power.

I find s.170EE(4) puzzling. I can understand why the drafter thought it necessary to say that nothing in s.170EC limits the Court's power to make an interim or interlocutory order in relation to an application under s.170EA. Otherwise, it might have been thought that the Court could not make even an interim order before referring a matter to the Industrial Relations Commission for conciliation; and it might sometimes be important to make an interim order, for example to preserve the assets or records of the respondent. It would not have been surprising if a provision such as s.170EE(E) had been appended to s.170EC. But it is difficult to understand why the drafter thought it necessary to extend the saving provision to s.170EE. Subsection (1) of that section grants a power. That grant cannot cut down the Court's powers (under s.419) to make an interim or interlocutory order. Subsection (2) merely gives examples of orders that the Court may make under subs.(1). Perhaps the explanation lies in subs.(3), which limits reinstatement to cases where the only apparent contravention of Division 3 is in relation to a provision other than s.170DB (notice to employee) or s.170DD (notice to Commonwealth Employment Service). The drafter may have wished to preclude an argument that the Court's general injunction powers are not available in respect of an application for reinstatement.

Whatever the reason for s.170EE(4), one thing is clear: it is a savings provision, it does not confer a power. The power must be found elsewhere. So understood, the subsection still has work to do. Section 419 enables injunctions to be made in relation to s.170EA applications; although not injunctions restraining a proposed termination.

The conclusion that the Act confers no power on the Court to restrain a proposed termination of employment in contravention of Subdivision B of Division 3 of Part VIA is defensible in policy terms; although, no doubt some people would prefer the opposite position. If it were possible for employees threatened with dismissal to obtain an injunction restraining the employer from proceeding with the dismissal, it is likely that numerous applications would be made; whether because the employee genuinely wished to stay in the job or as a tactical move to obtain a cash settlement. The burden on the Court would be enormous, having regard to the number of unlawful termination claims being filed in the Court. The high rate of filings actually experienced since 30 March was predicted when the legislation was under consideration and may have influenced the policy adopted in the Act.

There is a second point. An application for an interim injunction restraining a proposed termination would require the Court to look at the facts of the case and form a view about them, if only a superficial view. In the normal course, this would have to be done before the case had been referred to the Industrial Relations Commission for conciliation. So the scheme intended by the Parliament (conciliation first, litigation - if absolutely necessary - later) would be subverted.

I am of the opinion that I have no power to make an interim order restraining the respondent from terminating the applicant's employment as Chief Radiologist.

The alternative order sought by the applicant is an order that the respondent reinstate the applicant, on an interim basis, immediately after his termination. I do not think I have power to do this. It is true that s.170EE(2)(b) speaks of a reinstatement order. But the type of order there envisaged is an order made pursuant to the general power conferred on the Court by subs.(1). The Court may exercise that power only "(a)fter considering the merits of an application under section 170EA". The Court has not yet reached that stage and will not do so until after conciliation proceedings in the Industrial Relations Commission.

I should add that, if I had taken a different view and concluded that I had power to restrain termination of Mr Dunham's employment or require his interim reinstatement, I would not have exercised that power, as a matter of discretion. Mr Dunham was aware on 23 March that he was to be dismissed and replaced. He was formally terminated on 31 March. The legislation was then in force. Mr Dunham could have filed an immediate application under s.170EA. He did not do so until after a replacement had been appointed on 8 April. Then he waited until the week in which his notice was due to expire before moving for an interim order. Under these circumstances, it would be unfair, not only to the respondent but also his replacement, to grant interim relief. I also take into account the acrimonious relationship between Mr Dunham and Mr Newman. Wherever the fault may lie, an order compelling a continuation of the employment relationship would cause practical problems. If Mr Dunham has a case under s.170EA, the preferable order is likely to be one for payment of monetary compensation.

It was for the above reasons that I refused the application for interim relief.

I certify that this and the preceding twenty-one (21) pages are a true copy of the Reasons for Judgment of the Honourable Chief Justice Wilcox.

Solicitors for the Applicant: Pigott Stinson Stuart Thom

Counsel for the Respondent: F G Lever and R Alkadamani