Autistic Association of New South Wales v Dodson

1 This is an appeal from a decision of a Judge of this Court (Wilcox J) on an application under s 377 of the Industrial Relations Act 1988 (Cth) ("the Act"), now the Workplace Relations Act 1996 (Cth), for review of a decision made under the Act by a Judicial Registrar of the Industrial Relations Court of Australia ("the Industrial Relations Court").

2 The Judicial Registrar determined that the appellant ("the Association") had contravened s 170DE of the Act by terminating the employment of the respondent ("Ms Dodson") without a valid reason and that under s 170EE(2) of the Act compensation was payable to Ms Dodson in the sum of $23,739. 3 The parties agreed that the review be conducted on the record of the evidence adduced before the Judicial Registrar and on written submissions. It was not suggested that the review as conducted was other than a hearing de novo. (See: D'Antuono v Minister of Health (1997) 80 FCR 226 per Burchett J at 228-235.) His Honour determined that the termination of Ms Dodson's employment by the Association was "unlawful", the Association not having discharged the onus placed upon it by s 170EDA(1)(a) of the Act to prove that there was a "valid reason" therefor. His Honour assessed the amount of compensation payable by the Association to Ms Dodson to be $12,500. 4 The Association contended that his Honour erred in failing to find that Ms Dodson's employment was terminated for a "valid reason … based on the operational requirements of the undertaking, establishment or service" of the Association. Alternatively, it was submitted that his Honour erred in calculating the amount of compensation payable by the Association to Ms Dodson. 5 Ms Dodson was employed by the Association as its Manager, Adult Services on 2 July 1990 and occupied that position until dismissed on either 26 October 1995 or 2 November 1995. In a letter to Ms Dodson dated 9 November 1995 the Association stated that the dismissal followed a decision of the Board of Directors of the Association to effect a restructuring of management of the Association by replacing three positions (Executive Officer, Schools; Manager, Client Services; and Manager, Adult Services) with a single position, Director of Services. The letter made it clear that the foregoing was the sole reason for the termination of Ms Dodson's employment. Ms Dodson's conduct and performance as an employee was not in issue. 6 Ms Dodson commenced proceedings against the Association by an application in the Industrial Relations Court on 6 November 1995. The Judicial Registrar heard the application by taking evidence and receiving submissions in November 1996. At the conclusion of the hearing orders were made for the parties to file further written submissions. The decision of the Judicial Registrar was delivered on 5 August 1997. In the same month an application for review of the Judicial Registrar's decision was filed in this Court, apparently on the assumption that jurisdiction in respect of the matter had been conferred on this Court by the provisions of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) ("the Amendment Act"). His Honour's decision in the review proceeding was delivered on 30 January 1998. 7 On the hearing of the appeal a preliminary issue arose as to whether the appeal to this Court was a competent proceeding and whether the review of the decision of the Judicial Registrar should have been conducted by a Judge of the Industrial Relations Court and the appeal therefrom made to a Full Court of that Court. 8 Schedule 16 of the Amendment Act provided for the "transfer" of jurisdiction and proceedings from the Industrial Relations Court to this Court. 9 Item 63 of Sch 16 provided for a "transfer" of jurisdiction and powers as follows: "63(1) This item applies to jurisdiction and powers vested in or exercisable by the Industrial Relations Court or a Judge of that Court immediately before the transfer day in relation to an act or omission occurring before the transfer day, except in relation to matters for which: (a) the Industrial Relations Court had begun the substantive hearing in proceedings in that Court; or (b) proceedings had been completed in the Industrial Relations Court before that day. (2) On and after the transfer day, the jurisdiction and powers to which this item applies: (a) cease to be vested in or exercisable by the Industrial Relations Court or a Judge of that Court; and (b) are, subject to subitem (3), vested in the Federal Court. …" 10 Item 64 of Sch 16 provided for the transfer of proceedings: "64(1) …this item applies to proceedings commenced in the Industrial Relations Court but in respect of which the Industrial Relations Court had not begun the substantive hearing before the transfer day. (2) On the transfer day, proceedings to which this item applies are transferred to the Federal Court. (3) If proceedings to which this item applies are transferred under subitem (2): (a) all documents filed in the Industrial Relations Court in relations to the proceedings are to be transmitted to the Federal Court; and (b) any money lodged with the Industrial Relations Court in relation to the proceedings is to be transferred to the Federal Court and is taken to be money lodged with the Federal Court in relation to the proceedings; and (c) everything done in or in relation to the proceedings in the Industrial Relations Court is taken to have been done in the Federal Court. …" 11 The word "proceeding" and the term "transfer day" are defined in Item 62 of Sch 16: "proceeding means a proceeding in a court, whether or not between parties, and includes: (a) an incidental proceeding in the course of, or in connection with, a proceeding; and (b) an appeal. transfer day means the day on which the Federal Court is invested with jurisdiction under Division 2 of this Part, being the day on which Part 1 of this Schedule commences." 12 Part 1 of Sch 16 commenced, in accordance with s 2(3) of the Amendment Act, on 25 May 1997, six months after the date of Royal Assent. The "transfer day", therefore, is 25 May 1997. (See: Kumar v Prima Furniture (NSW) Pty Ltd (1997) 75 FCR 477.) 13 To ascertain Parliament's intention in respect of the disposition of proceedings pending in the Industrial Relations Court at the time the Amendment Act came into effect, it is necessary to read Items 63 and 64 of Sch 16 with s 412 of the Act by which jurisdiction in respect of matters arising under the Act has been conferred on this Court. Pursuant to s 77 of the Constitution, the jurisdiction of the Industrial Relations Court as a federal court was defined with respect to matters arising under the Act by s 412 of the Act as it stood before the Amendment Act. From the commencement of the Amendment Act, s 412 as amended conferred that jurisdiction on this Court. Further, pursuant to Item 63 of Sch 16 of the Amended Act, part of the jurisdiction conferred on the Industrial Relations Court by the Act before the Amendment Act became "vested" in this Court. 14 Item 63 expands the operation of s 412 of the Act as amended by the Amendment Act by declaring that after the "transfer day", 25 May 1997, part of the jurisdiction and powers conferred on the Industrial Relations Court became "vested" in and exercisable by this Court, and ceased to be "vested" in and exercisable by the Industrial Relations Court. To be excepted from such a divesting of jurisdiction it was necessary for proceedings in the Industrial Relations Court in relation to a matter to have been completed, or for the substantive hearing in those proceedings to have commenced before the "transfer day". 15 The additional jurisdiction of this Court was defined as matters arising under the Act that were not matters for which the Industrial Relations Court had completed proceedings, or had begun the substantive hearing in proceedings in that Court. 16 The word "matter" as used in Item 63 has the meaning ascribed to it in Ch III of the Constitution. It is a justiciable controversy between parties to be quelled or resolved by the exercise of the judicial power of the Commonwealth. (See: Fencott v Muller (1983) 152 CLR 570 per Mason, Murphy, Brennan, Deane JJ at 607 - 608; Re Satellite Productions Pty Ltd (In liquidation); Sky Channel Pty Ltd v Gray (1992) 39 FCR 62.) As Griffith CJ said in Huddart Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 (approved by the Privy Council in Shell Company of Australia Limited v FCT (1930) 44 CLR 530 at 542 - 543): "…I am of opinion that the words 'judicial power'as used in sec. 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action." 17 "Matter", so defined, does not have "proceedings" as a synonym. Proceedings in a federal court are the means by which judicial determination of a matter is obtained. 18 In the relevant part of Item 63 of Sch 16 the important words are - "…in relation to matters for which: …the Industrial Relations Court had begun the substantive hearing in proceedings in that Court…". The use of the definite article with "substantive" and the use of "proceedings" in the plural, suggest that unless the hearing of the substance of the controversy has commenced, by which the matter is to be resolved by the exercise of judicial power, Item 63 will apply to divest jurisdiction in that matter from the Industrial Relations Court and to confer that jurisdiction on this Court. The words "the substantive hearing" mean the hearing by which the rights of the parties are determined in respect of the substance of the controversy. (See: Shorter Oxford Dictionary (3rd Ed) (Oxford: Clarendon Press, 1973) at 2,173.) "Proceedings" refer to the totality of process in the Industrial Relations Court by which that substantive hearing is undertaken and the controversy resolved by initial determination. 19 Commencement of the hearing of an interlocutory proceeding, notwithstanding that it may involve a "substantial" hearing, would not satisfy the words of exception and in those circumstances Item 63 would apply. 20 Therefore, the jurisdiction conferred on this Court by Item 63, formerly jurisdiction exercisable by the Industrial Relations Court, is jurisdiction in relation to matters for which the latter court had not begun the substantive hearing of the controversy as defined by the proceedings in that court. 21 If such a hearing had not begun, then pursuant to Item 64 the proceedings in respect of the matter are transferred to this Court to enable this Court to exercise the jurisdiction and powers conferred on it by Item 63 in relation to the matter. 22 The words "proceedings commenced in the Industrial Relations Court … in respect of which the Industrial Relations Court had not begun the substantive hearing" as used in Item 64 take their meaning from the like words used in Item 63. Item 64 applies to proceedings in matters to which Item 63 applies. It has no function that is independent of the operation of Item 63. If no jurisdiction is conferred by Item 63, this Court cannot exercise judicial power. (See: Australian Health Insurance Association Ltd v Esso Australia Pty Ltd (1993) 41 FCR 450 per Black CJ at 459-460.) 23 Only if jurisdiction in a matter is divested from the Industrial Relations Court and conferred on this Court by Item 63 will proceedings in the Industrial Relations Court in respect of that matter be transferred from the Industrial Relations Court to this Court on the transfer day pursuant to Item 64. If jurisdiction in a matter is not so divested the Industrial Relations Court remains the Court empowered to resolve the controversy that constitutes the matter. 24 In this case there is no question that as at 25 May 1997 the substantive hearing in the proceedings commenced in the Industrial Relations Court had begun. The Judicial Registrar had heard the respective cases of the parties. The decision of the Court was pending as a determination by a Judicial Registrar in exercise of judicial power delegated by the Court pursuant to s 376(3) of the Act. 25 Pursuant to s 376(4) delegated power exercised by a Judicial Registrar is taken to have been exercised by the Court. It follows that unless, or until, a Judicial Registrar's decision is set aside upon review by a Judge under s 377 of the Act it is an order of the Industrial Relations Court and "as much an exercise of the Court's jurisdiction as a decision of a judge". (See: Shackley v Australian Croation Club Ltd (1996) 141 ALR 736 per Wilcox CJ at 741.) The fact that a decision of a Judicial Registrar may be reviewed by a Judge does not make the hearing conducted by the Judicial Registrar, or the decision of the Judicial Registrar, any less a hearing, or exercise of judicial power, by the Industrial Relations Court. 26 If a proceeding for review of a Judicial Registrar's decision is initiated, that proceeding does not define a new matter but is a further proceeding in proceedings which seek resolution of the one matter, namely, determination of a controversy as to the lawfulness of the termination of the employment of Ms Dodson by the Association. (See: Shackley per Wilcox CJ at 746.) 27 It was not suggested that limitation of the power of a federal court to delegate judicial power to only part of its jurisdiction, as discussed by Mason CJ and Deane J in Harris v Caladine (1991) 172 CLR 84 at 95, was exceeded by the terms of s 376(1) of the Act. Nor was it suggested that the review procedure set out in s 377 of the Act was less than was necessary for such a delegation to be consistent with the requirements of Ch III of the Constitution. 28 In Kumar (at 478) the construction of Items 63 and 64 of Sch 16 was considered by a Judge of this Court who expressed the following conclusion: "The Industrial Relations Court does not retain jurisdiction and powers in relation to the entire matter but only that part of it which is the subject of proceedings where the Court has begun the substantive hearing. The purpose of items 63 and 64 is, in my opinion, to permit a judicial registrar, a judge or a Full Court of the Industrial Relations Court to complete what he, she or they had substantially begun." His Honour's discussion of the construction of Items 63 and 64 suggests that his Honour treated Item 64 as the prime provision and Item 63 as "also relevant". In particular, his Honour had regard to the divisible nature of "proceedings" and the possibility that Item 64 operated by transferring a proceeding, the hearing of which had not "substantially begun". 29 For the reasons outlined above we are unable to agree that Items 63 and 64 may be so construed. The first step in construction is determination of the scope and purpose of Item 63 which controls the operation of Item 64. Consistent with the requirements of the Constitution, Item 63 is concerned with defining the jurisdiction of the Industrial Relations Court and the jurisdiction of this Court with respect to matters arising under the Act. The Act, by its content and operation, has not purported to define reductively the scope of a matter that may arise under the Act. (See: TNT Skypak International (Aust) Pty Ltd v FCT (1988) 82 ALR 175 per Gummow J at 181.) 30 The content of Item 63 has been carefully drawn. To purport to divest jurisdiction from a federal court that has commenced to exercise judicial power vested in it by the Constitution in respect of jurisdiction vested in it by the Parliament, may be said to be an interference with judicial power not permitted by the Constitution. (See: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ at 37; Liyanage v R [1967] 1 AC 259; Building Construction Employees and Builders' Labourers Federation of New South Wales v Minister for Industrial Relations [1986] 7 NSWLR 372 at 378, 394, 409.) 31 It follows that the appeal is incompetent and must be dismissed. We will receive submissions from the parties in writing as to any further or consequential orders including costs. Consideration may need to be given to whether amendment should be sought to the grounds of appeal should a submission be made that the judgment appealed from should itself be set aside for want of jurisdiction. In saying this we should not be seen to be suggesting either that any such amendment should be sought or, if sought, should result in the making of any order.