Anthony Balsdon v Murray Irrigation

Anthony Balsdon v Murray Irrigation - [2003] NSWIRComm 251 - NSWIRComm 2003 case summary — Zoe

[27]

(2) As a general rule it is desirable that an objection to jurisdiction be determined as early as circumstances will conveniently admit so that the tribunal does not embark on a hearing which it lacks authority to conduct. The course of a court entertaining a challenge to jurisdiction in a preliminary or threshold way is often a sensible one where a party has a substantial threshold argument which, if it succeeds, will knock out the claim and save the costs and inconvenience that attend a protracted hearing of proceedings on the merits. (3) However, a further general proposition is that all issues arising should be dealt with in the substantive proceedings unless the basis for a challenge, either on jurisdictional grounds, or for lack of a reasonable cause of action, be clearly demonstrated. (4) Threshold relief of the kind sought here must be conserved to a clear case where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation. (5) Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for any order which the Court might make between the parties. This is because, to secure relief, the claimants must demonstrate that no order could be made which would be within jurisdiction. The resulting burden is a heavy one. (6) Accordingly, whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings. That is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made. (7) Similarly, the jurisdiction to terminate an action summarily for want of a cause of action is to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated. 11 In order to succeed in a motion to dismiss on a preliminary basis a summons for want of jurisdiction, a respondent must demonstrate that there is no power in the Commission to grant any relief sought in the application. 12 However, as indicated in the fifth proposition cited above from Virtue "refusal of relief at the threshold [that is on a basis of a preliminary point or motion] will not finally determine that jurisdiction exists for any order which the Court might make between the parties". In other words, it remains open to a respondent unsuccessful on a preliminary motion to maintain its arguments as to lack of jurisdiction for the purposes of the final hearing. 13 Further, as observed in the seventh proposition and notwithstanding the public interest in having struck out at an early stage proceedings for which there is no jurisdiction, "the jurisdiction to terminate an action summarily for want of a cause of action is to be sparingly employed and ought not to be used save where the lack of the cause of action [is] clearly demonstrated". 14 The jurisprudence of this Court represented by the judgment of the then Full Industrial Court in Nagle v Tilburg , and the cases which have followed it, has been important in controlling a practice which had developed in the jurisdiction of some respondents too readily raising jurisdictional arguments at an early stage, at times with at least the appearance of a forensic tactic or an attempt to place logistical difficulties in the way of a less well-resourced applicant. The decision in this matter should not be seen as, or become, a basis for the rigour which has hitherto been exercised in the jurisdiction to be lessened. These observations are made only to emphasise the decision in this matter has depended on the very particular and relatively rare set of circumstances raised by these proceedings. It should not be interpreted or considered by those who practice in the jurisdiction as signifying any lessening of the stringency with which the approach in Nagle v Tilburg will be adhered to.

[30]

18 The judgment of Hungerford J in Younan-Sedrak, relied upon by MIL in these proceedings, represents something of a refinement of the approach in Nagle v Tilburg to the extent that his Honour concluded that it was not appropriate in that case for a jurisdictional question to be determined before conciliation had been attempted. His Honour observed: Section 109 of the Industrial Relations Act makes provision for the conciliation of applications to be attempted first; I emphasise the use in the section of the word " first". Sub-section (1) provides that the Court must endeavour, by all means it considers proper and necessary, to settle a matter by conciliation and sub-s.(2) provides that where, in the opinion of the Court, all reasonable attempts to so settle the matter have been made but have been unsuccessful, the Court is to determine the matter. Having in mind those sub-sections, and as the heading of the section makes clear, it is my view that before a matter is determined the process of conciliation must first be attempted to the point where it may reasonably be said it has been unsuccessful. If it were otherwise, then, it seems to me to be clear, the whole statutory purpose and intent of s 109 would be lost. The point may be illustrated in this way: if the present Motion were argued successfully then the claims to which it was directed would be determined by being effectively dismissed, and that would occur without there first being attention to conciliation as required by the section. I emphasize, in expressing this view, that at this point of time the claims are properly before the Court and there has been no determination one way or the other as to whether they are within or outside jurisdiction. As such, being before a superior court of record, they properly stand for consideration with no assumption they are beyond power so as to remove them, but as the respondent suggested was the case, from the scope of the requirement for conciliation before determination. Against conciliation being attempted prior to the Notice of Motion being heard, a large part of the opposition was based upon the proposition that conciliation would require additional expense being incurred by the parties in preparing for it, expense which otherwise may not be necessary. I disagree. The whole purpose of conciliation, in my view, is an alternative cost effective and efficient way in which parties may have their dispute dealt with; indeed, so much is clear from the terms of s.109 which require conciliation to be attempted first . It is not necessary, in my view, in preparing for an effective conciliation for there to be the preparation of affidavits and other material as if the matter were to proceed to a substantive hearing. Appropriate steps may be adopted to enable conciliation to proceed in a cost effective way. Even if all of the issues not be settled, a large part of them might be so that that in itself will mean the conciliation process has resulted in at least a containment of the claims thus representing a saving in costs. For the reasons given, I am of the view that it is appropriate, indeed it is a requirement of s 109, for the whole of this matter to proceed to conciliation first in order to see if it may be resolved. It follows that the Notice of Motion filed by the respondent should be stood over to a date to be fixed. I make orders accordingly. Whether the Motion should be heard as a preliminary matter rather than as part of the whole proceedings, if the conciliation be unsuccessful, will be determined later.

[31]

19 In Taudevin (No 2) Wright J, President considered the submission that there was no warrant for the Commission to proceed to conciliate a matter which may be without jurisdiction. It was put to his Honour that a firmly held view by one party that a matter is outside jurisdiction may be a substantial obstacle to any conciliation and a conciliation then would run counter to the "general rule" that jurisdictional questions be determined as early as circumstances conveniently admit. At pars[35] to [37] Wright J stated: 35 The initial consideration as to this aspect of the present issues is the significance and the strength of the observations of Hungerford J in Younan-Sedrak noting, however, that a different approach was taken on this issue by Peterson J in McGowan v Australian Broadcasting Corporation [2001] NSWIRComm 49 at [15] where his Honour held: I conclude that s 109 does not compel conciliation of a matter which is contended to be beyond the Commission's jurisdiction. This means that whether a matter goes to conciliation or not first will be a matter for the Court at first instance to determine in the exercise of its judicial discretion, on the facts of the particular case. 36 The differing approaches raise an important issue as to a fundamental aspect of the Court's jurisdiction and practice. The importance of the obligation on the Commission under s 109 to conciliate should not be underestimated: the requirement did not exist in the counterparts to s 106 in the 1940 and 1991 statutes, and the 1996 legislative intention to encourage and facilitate settlement of s 106 proceedings appears to have been vindicated by the very great proportion of applications resolved by the operation of s 109. See also the consideration, albeit in a different context, by a Full Bench of the Commission in Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd, t/as Dymocks Parramatta (2001) 103 IR 394 at 395 - 398 of the interrelationship between the conciliation and determination of proceedings and the significance of conciliation in the functioning of this jurisdiction even where it is alleged that there was an absence of power to determine the proceedings. 37 However, because of the firm conclusion I have reached on the respondents' strike-out applications, it is not necessary for this difference to be resolved in these proceedings as they may be satisfactorily finalised otherwise. In other words, as I have concluded that the motions are to be dismissed, the apparent mandate in s 109 as to conciliation prior to determination will be observed. Nevertheless, it may be observed that the considerations referred to in the judgment in Younan-Sedrak serve to emphasise the stringency with which the approach in the line of cases represented by the judgment in Nagle v Tilburg is to be applied in these proceedings.

[32]

20 In McGowan, after referring to the judgment in Younan-Sedrak, Peterson J observed: 14 It may be seen that the facts in Younan-Sedrak were very different to those arising in the Metrocall case before Schmidt J. The objection to jurisdiction in the former case was confined to only parts of the matter and it followed that conciliation was necessarily to occur in relation to those matters to which objection was not taken. In those circumstances, there is no lack of logic in the proposition that the matter should first proceed to conciliation. I do not understand Hungerford J to have been expressing, nor indeed the Full Bench to have adopted, the view that s.109 imposes a duty to conciliate all matters which come before the Commission purporting to be matters raised under the unfair contract provisions of the Act. It would, in my view, be quite illogical to construe s.109 as though it were intended to operate in relation to all matters whether they are within the Commission's jurisdiction or outside it. The phrase "settle a matter under this Division" in s.109(3) must be taken to refer to claims properly arising under the Division. While, as Hungerford J said in Younan-Sedrak , matters are not to be assumed to be beyond power, once a jurisdictional objection is taken there is equally no warrant to assume power in the face of the objection. Another well-recognised principle then operates: a court has an duty, particularly where an issue is raised, to satisfy itself that its proceedings do involve a proper exercise of jurisdiction. This is not to preclude the possibility that conciliation may be accepted, even in the presence of a jurisdiction point, to be the most efficient and least expensive way to resolve a claim, whether within or without power. However, there can be no proper purpose in the Court seeking to bring to settlement parties who are not properly before it. It goes without saying that a respondent who objects on a strong basis to the jurisdiction of the Commission to deal with a claim brought under s106 is likely to be an unwilling party to conciliation and obviously is under no obligation to conciliate as an act of generosity.

[41]

27 Mr Moore relied on the judgment of Schmidt J in Bell & Berg v Macquarie Bank (the judgment is under appeal). In that case Schmidt J considered whether a claim by Mr Berg for relief under s 106 was, in reality, an unfair dismissal claim in disguise. At pars [278] to [283] her Honour came to the conclusion that Mr Berg's complaint was essentially a complaint that his employer had failed to accord him procedural fairness and that such a complaint was properly available in unfair dismissal proceedings under s 84, had the section applied to Mr Berg. Her Honour decided that this aspect of Mr Berg's complaint under s 106 was precluded by s109A: 278 Here, correctly in my view, complaint as to the unfairness of the decision to dismiss Mr Berg was expressly eschewed, as falling within the provisions of s109A. The complaints as to the procedural failure to refer the decision to dismiss to the Executive committee before it was implemented, were however pursued. Undoubtedly, on its face that complaint was concerned with the contract of employment. The question which must be answered however, is whether in reality the complaint advanced was concerned with the failure to abide by the procedural step which applied to Mr Berg in any event, under the applicable policy, absent any contractual term to that effect. 279 As the majority in Abboud observed at p50, 'the issue of whether considerations of a procedural nature are pertinent to a determination of whether the dismissal of an employee was unfair, has, of course, regularly been visited in the context of claims for unfair dismissal'. Those cases were accepted as providing 'guidance when dealing with a claim under s106 that the contract has become unfair primarily as a result of the actions of the respondent in terminating it.' Section 109A has however now been enacted and requires consideration. 280 It follows from the judgment in Beahan, that s109A requires that consideration here be given as to whether the complaint advanced in relation to the failure to abide by the applicable procedure, is not one for which an application could have been made for unfair dismissal. That is, is this aspect of the complaint, in reality, an unfair dismissal claim in disguise? 281 Given the provisions of s84, permitting applications to be made in the event that the employee claims that dismissal is harsh, unreasonable and unjust and the many cases which have decided that failure to follow an applicable procedure in relation to dismissal, even if not contractual, may provide a proper basis for the conclusion that the dismissal was so tainted, it must follow that the particular complaint advanced here, failure to follow the procedure provided in the applicable guidelines, is a complaint not available to be brought under s106. This, in my view, follows particularly from the discussion of the Full Bench of the Commission in Antonakopolous v State Bank of New South Wales (1999) 91 IR 385 at pp387 to 390, where it was concluded: 'While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust. An example of this approach being taken is Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 at 64 where a Full Bench ( Cahill J, Vice-President, Schmidt J and Tabbaa C) granted relief to an employee on appeal on the basis that she had been denied the procedural opportunity to respond to the matters on which the decision to dismiss rested.' 282 Here, there was no doubt that the guidelines relied upon had been laid down administratively by Macquarie. They applied to Mr Berg's employment. There was a failure to adhere to them. That failure was plainly a matter about which complaint was properly available in unfair dismissal proceedings under s84, had the section applied to Mr Berg. Applying the approach of the Full Court in Beahan , it follows that this aspect of the claim was precluded by s109A, together with any other complaints as to the unfairness of the decision made to dismiss him.

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