BALLARD v GREENS GENERAL FOODS PTY LTD No. SCGRG-96-1140 Judgment No. S6590 [1998] SASC 6590

On 13 December 1996 the defendant applied for an order that the action be dismissed. The defendant asserted that the amended Statement of Claim suffered many, if not all, of the defects of the original. The application was heard by a Master on 3 March 1997. The Master made several orders. For present purposes it is sufficient to note only paragraphs 1 and 2 of the order:

1. That the application to dismiss the action be adjourned sine die.

2. That the plaintiff be given leave to file a fresh amended Statement of Claim deleting any claim based upon South Australian legislation referred to in the present drafts within 21 days.

The order is not clear in its terms. The order does not specify what is meant by the "South Australian legislation". The Statement of Claim includes claims grounded on two statutes enacted by the South Australian Parliament. They are the Fair Trading Act, 1987 and the Misrepresentation Act, 1971. It is common ground that both Acts are the "South Australian legislation" referred to in the order. The effect of the Master's order was to limit severely the causes of action available to the plaintiff. From that decision the plaintiff now appeals to this court. There have been other interlocutory steps but it is unnecessary now to examine them. The plaintiff's solicitors have not promptly prosecuted the appeal and orders have been made extending the time within which to set it down for hearing.

According to the Statement of Claim, before 31 March 1987 the plaintiff and his wife held all the issued shares in Ballard Agencies Pty Ltd, a manufacturer and broker of wholesale food products. The plaintiff held 51 shares and his wife held 49 shares. The plaintiff and his wife sold their shares to the respondent Greens General Foods Pty Ltd ("Greens") in two separate transactions. On 31 March 1987 Greens purchased 50 shares. On the same day the plaintiff entered into an agreement with Ballard Agencies Pty Ltd pursuant to which he agreed to serve as managing director of that company from 31 March 1987 to 1 April 1997.

On 19 November 1993 Greens purchased the remaining 50 shares in Ballard Agencies Pty Ltd from the plaintiff and his wife. On the same day the plaintiff entered into a deed under which the service agreement dated 31 March 1987 was terminated. The plaintiff alleges that he entered into the deed of termination relying on representations made by directors of Greens. The terms of those representations are set out in the Statement of Claim. It is alleged they were in these terms:

(1) "That no one in senior executive employment of Greens has Service Contracts - we trust our employees and they trust us";

(2) "just because the Service Agreement is not in writing does not mean we won't honour our obligations. Your employment and conditions will continue just the same as they were before."

Early in 1994 the plaintiff went on a short holiday overseas. On 5 February 1994 he returned to the warehouse and office premises of Ballard Agencies. He found that he could not gain entry because the locks had been changed. On 7 February 1994 Mr Andrew Green, the second defendant and a director of Greens and Ballard Agencies, informed the plaintiff that his employment had been terminated.

On 25 February 1994, the plaintiff filed an application in the Industrial Commission against Ballard Agencies Pty Ltd seeking a determination pursuant to s31 of the Industrial Relations Act, 1972 that the termination of his employment had been harsh, unjust or unreasonable. He sought an order for re-employment or, alternatively, for payment of compensation. On 4 November 1994, for reasons that are not material to the appeal, the plaintiff discontinued those proceedings.

On 8 August 1994 all of the provisions of the Industrial & Employee Relations Act, 1994 ("the 1994 Act") had come into force save for one provision not relevant to this appeal. It repealed and replaced the Industrial Relations Act, 1972 ("the 1972 Act"). On 2 December 1994 the plaintiff made an application in the Industrial Relations Commission. He sought relief under Part 6 (ss105-111) of the 1994 Act which provides remedies for unfair dismissal. He sought a determination pursuant to s107 that his dismissal was harsh, unjust or unreasonable. He further sought orders under s108 for reinstatement or re-employment or compensation. On this occasion, the respondent was Greens. The matter was set down for hearing on 6 February 1995. However, the plaintiff decided to discontinue his application. On 6 February 1995 the Commission made an order granting leave to the plaintiff to discontinue his application and awarding Greens its costs of the application.

On 3 June 1996 the plaintiff then instituted this action in which he seeks damages. The plaintiff does not allege that his dismissal was unlawful under either the 1972 Act or the 1994 Act. Instead, the plaintiff's claim is that the defendants made representations to him which were false and engaged in conduct that was misleading and deceptive within the meaning of the Fair Trading Act, 1987 or the Trade Practices Act, 1974 (Cth). The plaintiff also claims that the representations were misrepresentations within the meaning of the Misrepresentation Act, 1971. The defendants submit that, by instituting a claim under the 1994 Act, the plaintiff is estopped by s105(3) of the 1994 Act from instituting any other proceedings. It is, therefore, necessary to examine the terms of the 1994 Act.

Section 105 of the 1994 Act as it stood in December 1994 provided:

"(1) If an employer dismisses an employee, the employee may, within 14 days after the dismissal takes effect, apply to the Commission for relief under this Part.

(Note: The Commission may extend the 14 day period under section 167 of the Act.)

(2) An application cannot be made under this section if -

(a) proceedings to appeal against or review the employee's dismissal have been commenced under another law of the State; or

(b) the dismissed employee is an employee of a class excluded by regulation (which must, however, be consistent with the Termination of Employment Convention) from the ambit of this Part.

(3) If an employee takes proceedings under this Part, the employee -

(a) is taken to have elected to pursue the remedy provided by this Part to the exclusion of other remedies that may be available on the same facts; and

(b) is estopped from taking proceedings for remedies based on the same facts unless the proceedings under this Part fail for want of jurisdiction."

Part 6 of the 1994 Act which comprises ss105 to 111 was amended by the Act No 67 of 1995 but the amending Act did not commence until 31 August 1995. As the plaintiff had discontinued his action by 6 February 1995, it is not necessary to have regard to the amendments. The issues in this appeal will be determined according to the terms of the Act before the 1995 amendment. The defendants submit that Part 6 of the Act applied to the plaintiff's second application for reinstatement. They say, therefore, that, as the plaintiff instituted proceedings under the 1994 Act and discontinued them, the plaintiff is estopped from bringing the action by the terms of s105(3).

The plaintiff does not accept this submission. For his part, he relies on the transitional provisions in s8 of Schedule 1 of the 1994 Act. Section 8 is to be found in the Schedule under the heading "Continuation of part-heard proceedings etc". It reads:

"8.(1) The jurisdiction of the Court and the Commission under this Act extends to causes of action that arose before the commencement of this Act.

(2) Any proceedings that had been commenced before the former Court or the former Commission may be continued and completed by the Court or the Commission under this Act.

(3) The Court or Commission will apply the substantive law in force when the cause of action arose, or if proceedings relate to the making or variation of an award, when the application was made.

(4) However, if an application for an award or variation of an award is made after 14 May 1994, the application is to be determined in accordance with this Act."

The plaintiff says that the 1994 Act was not intended to operate in respect of dismissals which occurred before the 1994 Act came into force. He says that the proceedings he instituted under the 1994 Act were a nullity, so that s105(3) does not operate to bar this action. The latter assertion is not a true statement of the issue. Instead, the issue is whether the proceedings instituted under the 1994 Act were issued under Part 6 of that Act or under s8 of the Schedule to the Act.

The purpose of s8 of the Schedule as a transitional provision is to provide, among other things, for the hearing of claims for unlawful dismissal under the 1972 Act which had not been heard and determined before the 1994 Act came into operation. Section 31 of the 1972 Act entitled an employee to apply for relief under that provision within 21 days after he had been dismissed. The repeal of the 1972 Act would not affect causes of action which had accrued before that Act was repealed: see s16 of the Acts Interpretation Act, 1915. Notwithstanding the terms of its heading, s8 is intended to apply both to proceedings which had already been commenced before the 1994 Act came into operation and to proceedings commenced within 21 days thereafter. If it did not do so, it would deny relief to those persons who had been dismissed before the 1994 Act came into force but who had not then issued proceedings. In this way, s8 of Schedule 1 recognises the claims which are preserved by s16 of the Acts Interpretation Act and provides the means by which they are to be heard and determined. There would be two classes of such claims. The first would be claims which had been commenced before the 1994 Act. Those claims would be at various stages between the institution of the proceedings, through part-heard claims, to those which had been heard and were awaiting determination. The second class would be claims for causes of action which had accrued under the 1972 Act but which had not been instituted. Section 8 provides the tribunal to hear and determine the claims and stipulates the law to be applied by that tribunal. According to the nature of the proceedings, it will be either the Industrial Relations Court or the Industrial Relations Commission as constituted under the 1994 Act.

Jurisdiction to hear claims for unlawful dismissal under the 1994 Act is vested in the Commission by s26(d) and by s105. The use of the word "extends" in s8(1) demonstrates that it is intended to add to the jurisdiction to hear claims under the 1994 Act another jurisdiction to hear claims under the 1972 Act. Plainly, s8(1) invests the Commission with jurisdiction to hear claims for dismissal under the 1972 Act which had not been determined before the 1994 Act came into force. But for s8(1), the Industrial Relations Commission as constituted under the 1994 Act would not have jurisdiction to hear such claims.

Section 8(2) of the Schedule deals with proceedings already commenced, and obviously includes claims for unlawful dismissal. Section 8(3) provides, among other things, for the law to be applied by the Commission when determining claims for unlawful dismissal. It is to be the law in force when the cause of action arose. When determining whether the dismissal was unlawful and, if so, what redress should be available to the employee, the Commission will apply the law in force at the time when the employee was dismissed.

Viewed in this way, it can be seen that there is a cohesive scheme in place to deal with claims for unlawful dismissal which had already been instituted before the 1994 Act commenced or were instituted after that Act commenced for dismissals which occurred while the 1972 Act was in force. It would be absurd that the redress available to employees who are unlawfully dismissed should depend on whether the action had been instituted before the 1994 Act commenced. Yet, that is one effect of the submission made on behalf of the defendants. The bar to later proceedings created by s105(3) is a dramatic curtailment of the rights available to employees as they existed under the 1972 Act. There is nothing to indicate that Parliament intended that those who had already commenced proceedings under the 1972 Act would not be estopped while those who had not commenced proceedings should be estopped. It is apparent that the intention of the transitional provisions is that all workers unlawfully dismissed while the 1972 Act was in force should receive the same relief. In other words, the remedies available to workers dismissed before the 1994 Act commenced and the redress available to those workers should not be affected by the question whether proceedings were instituted before or after the 1994 Act commenced.

As the plaintiff was dismissed before the 1994 Act commenced, his claim for unlawful dismissal was to be determined in accordance with the provisions of the 1972 Act.

This conclusion is reinforced by the rule of the common law that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood to be applying to facts or circumstances that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 per Dixon CJ. There is nothing in the 1994 Act which indicates an intention that its provisions will apply to dismissals which occurred before it commenced operation. Indeed, s8 of Schedule 1 points to the contrary.

On 8 August 1994, when the 1994 Act came into force, the plaintiff had already instituted proceedings under the 1972 Act. However, on 4 November 1994 he discontinued those proceedings. Very shortly after, on 2 December 1994, the plaintiff instituted fresh proceedings in the Commission claiming that he had been unlawfully dismissed. He discontinued those proceedings on 6 February 1995. The heading of those proceedings referred to s105 of the 1994 Act and the redress sought was founded on ss107 and 108 of the 1994 Act. In other words, the claim invoked Part 6 of the 1994 Act. The person who drew the documents was plainly in error. The claim could not be brought pursuant to Part 6 of the 1994 Act since the jurisdiction which was being invoked was not the jurisdiction under Part 6 of the 1994 Act but the additional jurisdiction created by s8(1) of Schedule 1, a transitional provision expressly intended to deal with those claims remaining to be heard and determined under the 1972 Act. The fact that the proceedings in terms wrongly referred to the 1994 Act should not attract the operation of s105(3) for that would be to allow form to triumph over substance and to elevate the drafter's error into a proposition of law. The conclusion may be tested by considering the position which would have obtained if the plaintiff had recognised that he had relied on the wrong legislation and had amended his claim to bring it under the 1972 Act. If the plaintiff had then either discontinued the proceedings or had failed by reason of an adverse determination, although there might have been other bars, he would not have been estopped by s105(3) of the 1994 Act from bringing the present action. The position should be no different because the plaintiff has simply discontinued his claim without amending it.

For these reasons, the plaintiff's claim in this action is not barred by s105(3). I would allow the appeal. The parties should be heard as to the terms of the order.

In my opinion the appeal should be allowed. I agree with the reasons given by Justice Debelle for so deciding. There is nothing that I wish to add to those reasons.

I agree that this appeal should be allowed for the reasons given by Debelle J.