Carey v President of the Industrial Court Queensland & Anor [2004] QCA 62

SUPREME COURT OF QUEENSLAND

CITATION: Carey v President of the Industrial Court Queensland & Anor [2004] QCA 62

PARTIES: DAVID CAREY / (applicant/appellant) / v / PRESIDENT OF THE INDUSTRIAL COURT QUEENSLAND / (first respondent/first respondent) / DEPARTMENT OF JUSTICE & ATTORNEY GENERAL / (second respondent/second respondent)

FILE NO/S: Appeal No 8562 of 2003 / SC No 1157 of 2003

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 12 March 2004

DELIVERED AT: Brisbane

HEARING DATE: 19 February 2004

JUDGES: McPherson and Davies JJA and Mackenzie J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed with costs

CATCHWORDS: CONTRACT LAW – OFFER AND ACCEPTANCE – CONTRACT IMPLIED FROM CONDUCT OF PARTIES – where appellant offered employment for temporary periods by series of letters – whether conduct of appellant in continuing to work without dissent constituted acceptance of terms in letters / INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO SUPREME COURT – where appellant sought judicial review of decision of Industrial Court – whether privative clauses in s 349(2) and s 349(3) of the Industrial Relations Act 1999 exclude review for jurisdictional error / INDUSTRIAL LAW – QUEENSLAND – DISMISSALS - REMEDIES – where appellant sought prerogative order over refusal of Industrial Court to order reinstatement of appellant to former position – whether reinstatement can be ordered to a position that no longer exists – whether it would be futile to grant mandamus for short period of time before temporary appointment expired / Industrial Relations Act 1999 (Qld), s 78(1), s 78(2), s 78(3), s 349(2), s 349(3) / Judicial Review Act 1991 (Qld), s 18(2), s 41, s 43, Schedule 1 / Public Service Act 1996 (Qld) s 8, s 113 / Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399, considered / Brogden v Metropolitan Railway Co [1877] 2 AC 666, considered / Church v Gold Coast City Council [1996] 40 AILR 3-424, referred to / Craig v South Australia (1995) 184 CLR 163, followed / Empirnall Holdings Pty Ltd v Machon Paull & Partners Pty Ltd (1988) 14 NSWLR 523 applied / Ex parte Montgomery, Re Blue Mountains City Council (1955) 20 LGR (NSW) 174, referred to / Harding v University of New South Wales , NSWCA 17 December 1993, referred to / Ramsey Butchering Services Pty Ltd v Blackadder (2003) 127 FCR 381, referred to / R v Muir; ex parte Joyce [1980] Qd R 567, considered / Squires v President of the Industrial Court & Anor [2002] QSC 272, approved

COUNSEL: The appellant appeared on his own behalf / M Bobic for the first respondent / G C Martin SC for the second respondent

SOLICITORS: The appellant appeared on his own behalf / Crown Law for the first respondent / McCullough Robertson for the second respondent

1. McPHERSON JA: The appellant David Carey is a solicitor who, until 26 October 2001, was employed in the Department of Justice. According to his affidavit, he first entered that service on about 30 September 1993 when he was engaged until 31 December 1993 by the second respondent Department of Justice and Attorney-General as a Law Clerk with the classification A02 in the Crown Law Office, and subsequently as a Legal Officer (PO3). Over time he received a series of letters notifying him of further periodic engagements of which details are given in the reasons for judgment (169 QGIG 804) of Commissioner Bloomfield delivered in the Queensland Industrial Relations Commission on 17 April 2002. That decision was given in determining a jurisdictional point raised by the second respondent in an application no B2054 of 2001 by the appellant under s 74 of the Industrial Relations Act 1999 for an order for reinstatement under s 78(2) after being, as he claimed, unfairly dismissed on 26 October 2001.

2. There was an appeal by the second respondent from that decision to the Industrial Court constituted by the President, who on 25 June 2002 allowed the appeal in part and remitted the matter to the Commission for determination. The ensuing determination by the Commission was given on 27 August 2002 (171 QGIG 17) dismissing application no B2054 of 2001. It was followed by a further appeal from the Commissioner’s decision, which the President of the Industrial Court dismissed for reasons which he gave on 6 November 2002. The appellant then applied to the Supreme Court under s 43 of the Judicial Review Act 1991 for prerogative orders for relief under s 41 of the Act in the form of quashing the President’s decision and ordering him to hear and determine according to law the appeal brought before him in the Industrial Court. The application came before McMurdo J, who dismissed it. This is an appeal to this Court against his Honour’s decision.

3. The matter before the Industrial Commission raised questions about the nature and terms of the appellant’s engagement by the second respondent in the Crown Law Office and about his dismissal. These were wholly, or to some extent at least, questions of fact or law, or of mixed fact and law, which it was for the Commissioner to determine. See s 265(1)(a) of the Act and also s 265(1)(b), which refer to all questions arising out of an “industrial matter”, an expression which is widely defined in s 7(3) and Schedule 1 as covering for example, in item 15, a claim to dismiss or refuse to employ a particular person; and, in item 16, the right to dismiss or to refuse to employ, reinstate or re-employ a particular person. Section 341(1) of the Act confers a right of appeal to the court, meaning the Industrial Court (s 255); but only on the ground of: (a) error of law; or (b) excess or want of jurisdiction. Such a decision of the Industrial Court is declared by s 349(2) to be final and conclusive; and the jurisdiction of the “industrial tribunal” (meaning for this purpose the Industrial Court or the Commission: s 345) is declared by s 349(3) to be exclusive of the jurisdiction of any court and unassailable by injunction or prerogative order “in relation to proceedings in the [Industrial Court] within its jurisdiction”.

“I am pleased to inform you that it has been approved that the period of your engagement to perform the duties of Legal Officer, Public Law Branch, Crown Law, Department of Justice and Attorney‑General, Brisbane, PO/20058 be extended until 2 November 2001, with classification and salary as at present (namely PO3(04), $1942.80 per fortnight).

The extension of your engagement is based on operational convenience.

However, as previously advised, except for misconduct, your services are terminable by either party at any time by giving of two weeks notice. This temporary engagement may be terminated prior to the nomination completion date should intervening organisational circumstances require the cessation of this temporary engagement.”

7. Considered apart from statutory provisions imposed by the Public Service Act 1996 and the Industrial Relations Act 1999, there is no doubt that under the general law the effect of the appellant’s conduct in working for the second respondent from 30 September 1993, and of the second respondent’s action in paying him for doing so, would have given rise to the inference that a contract of employment had come into existence between them. Its terms would have been supplied partly by the common law, and by the terms of the letters of engagements provided by the second respondent at the start of each new period of engagement or the expiration of the one immediately before it.

8. In reliance, however, on the decision of Madgwick J in Church v Gold Coast City Council [1996] AILR 3-424, the appellant submits that those letters or their contents were no more than “unilateral announcements” by the second respondent to the appellant of successive extensions of his employment, to the terms of which he was not asked to assent, and never did so. But in circumstances like these, there would be no difficulty in inferring from the conduct of the parties the assent of the appellant to the terms of engagement contained in the last preceding letter of engagement provided to him by the second respondent. It is often convenient in deciding whether a contract has been formed to analyse the conduct of the parties into offer and acceptance; but it is never essential to do so where it is otherwise apparent that the parties have arrived at a binding agreement. See Brogden v Metropolitan Railway Co (1877) 2 App Cas 666. Formal acceptance of the offer contained in the second respondent’s final letter of a further period of employment on the terms stated in it can readily be inferred from the conduct of the appellant in continuing to work for the second respondent after receiving it and from his receiving and accepting payment as he had done before. See Empirnall Holdings Pty Ltd v Machon Paull & Partners Pty Ltd (1988) 14 NSWLR 523, 527-528 (Kirby P); 534-535 (McHugh JA). If the appellant had wished to escape the inevitable inference that he was assenting to work on the terms of the letters he received including the last, he was, of course, free to do so by stating his own terms to the second respondent in the form of a counter-offer. Whether in those circumstances his employment would then have been continued or renewed by the second respondent for a further period is a question that need not concern us.

9. When, therefore, the appellant received the final letter dated 30 August 2001 containing the extract set out above, his conduct in continuing without dissent to work for the respondent was susceptible of no reasonable inference or interpretation other than that he was agreeing to its terms, which included those referred to above. Among them was the provision that his engagement at the prevailing classification of PO3(04) was extended to 2 November 2001 at a salary of $1942.80 per fortnight. The letter expressly retained and reiterated a provision for termination of his services in the event of misconduct or by the giving of two weeks notice by either party. It also contained provision for termination before “the nomination [?nominated] completion date” of 2 November 2001 should “intervening organisational circumstances require the cessation of this temporary engagement”. In so far as those terms amounted to an offer by the second respondent of employment on new or different terms, that offer was accepted by the appellant by his subsequent action in continuing to work for the second respondent after receiving that letter. A conclusion to that effect was one of fact (see , 14 NSWLR, at 535); but the inference to that effect was so compelling that to have ignored it in the face of overwhelming evidence would surely have amounted to an error of law within the meaning of s 341(1)(a) of the in an appeal to the Industrial Court.

“(2) The Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before the dismissal.”

It may be accepted that the or a primary meaning of the word “reinstate” in the context of s 78(1) is “restore to” the former position that the employee enjoyed immediately before dismissal. The second respondent’s concession before the Commission on 27 August 2002 that the appellant had, within the meaning of s 78(1) been dismissed, therefore had the consequence of enlivening the Commission’s jurisdiction and power under s 78(2) to order the restoration of the appellant to his former position. It was, however, a power that, by the use of the word “may”, conferred on the Commission a discretion, to be exercised judicially, to restore or to refuse to restore the appellant to that position.

15. In so providing, s 78(2) created a form of remedy that is not available from courts applying the general law, which neither at law nor in equity would ordinarily enforce specifically a contract to perform services or, indeed, give any relief for wrongful dismissal other than damages for breach of contract. In that respect, as was recognised by Gibbs J in Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399, 403, a provision similar to s 78(2) conferred a discretionary power in certain circumstances “to create a new right, by directing the re-employment of an employee who in the absence of any such direction has no right to be re-employed”. The power is, moreover, exercisable not only where the dismissal is wrong or wrongful in the common law sense of being in breach of contract but, under s 78(1), also if it has taken place “unfairly”.

16. It should, however, be noticed that the relevant statute before the High Court in that case did not speak of reinstating the person dismissed, but specifically of “re-employing” him or her. A power to order an employer to “re‑employ” is conferred by s 78(3) of the Industrial Relations Act 1999 if the Commission considers that reinstatement would be “impracticable”; but it is directed to re-employment “in another position that the employer has available” and which the Commissioner considers “suitable”. By contrast, s 78(2) is limited to reinstatement or restoration to the employee’s “former position”. Although there was some discussion before the Commission of the power to order re-employment of the appellant, it does not appear that the Commission was ever asked to make an order to that effect or otherwise to exercise jurisdiction under s 78(3), and there was no appeal from any failure to do so. For such relief to have been ordered, it would have been necessary first to demonstrate that the second respondent had another position available that the Commission considered “suitable”.

17. Reverting to the issue of reinstatement, s 78(2) authorises reinstatement of the employee “to the employee’s former position”, which is to be “on conditions at least as favourable as the conditions on which the employee was employed immediately before the dismissal”. The provision does not in terms authorise reinstatement on conditions more favourable than those that prevailed before dismissal. This inevitably raises the questions concerning the meaning of the expression “position” or “former position”. These words are not defined in the Act; but in my view it is plain that its meaning or effect can be gathered only from reference to the terms and conditions on which the employee was engaged before dismissal. After all, it was the employment or engagement that created or gave rise to “the position”, and it is to that position that the appellant seeks reinstatement. There are slight differences in the language of similar provisions in other jurisdictions, but these conclusions are borne out by what is said, for example, in (2003) 127 FCR 381, 415-416 [74]-[81].

“You have to go back to just before the dismissal, your Honour. So at the least, the very most, I would have one week. Now if the Commission said or the Industrial Court said, ‘Well look, its impracticable to reinstate you that week. We won’t [do so]’, I wouldn’t be here, your Honour, I’m not a complete fool. That’s fine.”

When asked by his Honour whether he would have complained if the President of the Industrial Court had exercised his discretion not to order reinstatement because it would have involved the appellant in going back to his former work for only seven days, the appellant responded by saying that he “wouldn’t be here”. This and what follows in the transcript sufficiently demonstrates that what the appellant was seeking can have been no more than some form of vindication, which is something that he achieved when the second respondent by counsel before the Commission formally acknowledged that the appellant had been unfairly dismissed. In those circumstances, McMurdo J was plainly justified in declining to exercise his discretion to grant the relief sought under the Judicial Review Act. After rejecting the appellant’s application for relief based on jurisdictional error in the Industrial Court, his Honour proceeded:

“Alternatively, if I am wrong in that conclusion, this application should be refused upon discretionary grounds … The lack of utility of the relief sought is relevant … the applicant has not demonstrated any utility from the order sought beyond some vindication of his stance … Had I been of the view that the President’s decision was in error, I still would have refused this application.

26. The appellant before us was disposed to describe this alternative ground for refusing this relief as mere obiter dictum, a proposition which, according to the doctrine of precedent, must be doubtful. See Commissioners of Taxation (NSW) v Palmer [1907] AC 179, 184; and the discussion by Cross & Harris in Precedent in English Law, (4th ed, 1991), at 82. Whether or not that is so, it is clear that it was a basis on which the application could have been and was properly refused.

27. Nothing has been said to persuade us that his Honour’s decision dismissing the application for relief under the Judicial Review Act was wrong. The appeal must accordingly be dismissed with costs.

28. DAVIES JA: I agree with the reasons for judgment of McPherson JA and with the orders he proposes.

29. MACKENZIE J: I agree with the orders proposed by Justice McPherson and the reasons given by him.