Colley v Futurebrand FHA Pty Ltd & Anor [2005] NSWCA 223 | Case summary

The claimant entered into an employment contract with the first respondent on 15 May 2002 with a remuneration package of more than $200,000. On 18 March 2004, she sued her employer in the Industrial Relations Commission under s 106 of the Industrial Relations Act 1996 (the Act). The first respondent claimed her action was barred for want of jurisdiction by s 108A(1) of the Act, which came into effect on 24 June 2002, and excluded contracts of employment with a remuneration package of more than $200,000 from the Commission's jurisdiction under s 106. The claimant asserted that s 108A had no application to existing contracts and relied upon s 30(1) of the Interpretation Act 1987 and the common law presumption that Parliament does not intend to interfere with vested rights. HELD: Dismissing the summons (1) Until proceedings are commenced, s 106 only confers "a right" to commence proceedings; it is an abstract rather than a specific right; (2) Neither s 30(1) nor the common law presumption protected the claimant's "right" to commence proceedings under s 106, which did not survive the enactment of s 108A(1); (3) In any event, s 108A(1) evidenced an intention to exclude both s 30(1) and the common law presumption. ORDERS

22 JULY 2005 SUANNE COLLEY v FUTUREBRAND FHA PTY LTD & ANOR Judgment 1 MASON P: I have had the benefit of reading in draft the judgment of Handley JA. I agree with the orders proposed. 2 However, I prefer to rest my agreement on the same (narrower) basis as the decision of the Full Bench of the Industrial Relations Commission in Court Session in Aveling v UBS Capital Markets Australia Holdings Ltd [2004] NSWIR Comm 261, (2004) 135 IR 98. 3 To my mind, discussion of the nature of the power exercised under s106 of the Industrial Relations Act 1996 is inconclusive as to the retrospectivity issues (cf Aveling at [21]-[27]). 4 However, the emphatic language of s108A(1) is so clear that the jurisdictional preclusion must be respected. It is difficult to conceive of more straightforward language than the words "[a]n application cannot be made for an order…". These words deal expressly with "the temporal perspective crucial to [the] operation" of s108A, both as to what they permit and what they prohibit (Aveling at [28]-[30]). An application made prior to the section coming into effect is untouched, an application made after commencement is prohibited. 5 HANDLEY JA: On 18 March 2004 the claimant commenced proceedings in the Industrial Relations Commission (the Commission) claiming relief under s 106 of the Industrial Relations Act 1996 (the Act) on the ground that her contract of employment of 15 May 2002, which the first opponent (the company) terminated on 18 March 2003, was unfair. The company claims that her proceedings are barred by s 108A(1) because her remuneration under that contract exceeded the cap of $200,000 in s 108A(3) inserted by Act No 32 of 2002 which took effect on 24 June 2002. Section 108A(1), so far as relevant, provides: "(1) An application cannot be made for an order under this Division if the application relates to a contract of employment under which: (a) a remuneration package that exceeds the remuneration cap is paid or received … during the period of 12 months immediately before the application is made (or, if the application concerned relates to a contract that has been terminated, immediately before the termination) …" 6 On 8 April 2004 the company filed a notice of motion in the Commission seeking dismissal of the claimant's proceedings for want of jurisdiction under s 108A(1). The notice of motion was later fixed for hearing on 8 December 2004. In the meantime on 15 September the Full Bench of the Commission in Court Session decided in Aveling v UBS Capital Markets Australia Holdings Ltd [2004] NSWIRComm 261 (Aveling) that s 108A applied to contracts made before its commencement if proceedings had not been instituted before 24 June 2002. On 7 December the claimant commenced the present proceedings believing, no doubt with justification, that a single judge of the Commission would follow Aveling and that the privative provisions in s 179 of the Act might prevent her challenging such a decision. The Commission adjourned the company's notice of motion pending the decision of this Court. 7 Solution 6 Holdings Ltd v Industrial Relations Commission (2004) 60 NSWLR 558 establishes that the privative provisions in s 179 have no application to judicial review proceedings determined before the Commission makes a decision. 8 The claimant has treated the decision of the Full Bench in Aveling as a constructive refusal by the Commission to exercise the jurisdiction she claims it possesses under s 106, despite s 108A, and she seeks declaratory relief and an order in the nature of a mandamus requiring it to hear and determine her proceedings on their merits. It was common ground that s 108A restricted the jurisdiction of the Commission. Compare Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission (2004) 60 NSWLR 602, 618-9. The claimant's contention was that s 108A did not apply to contracts made before its commencement. 9 Act No 32 of 2002 which inserted s 108A in the Principal Act did not contain any savings or transitional provisions. However cl 3 of Sch 1 amended cl 2 of Sch 4 of the Principal Act to authorise the Governor to make savings or transitional provisions by regulation. None have been made. 10 On its face s 108A purports to apply to existing contracts of employment and to bar any application for an order under s 106 after its commencement. The claimant was forced to rely on the general savings and transitional provisions in s 30 of the Interpretation Act 1987 or on a reading down of s 108A driven by the common law presumption that Parliament does not intend to interfere with vested rights. Section 30(1) of the Interpretation Act relevantly provides: "(1) The amendment or repeal of an Act … does not: … (b) affect the previous operation of the Act … or anything duly suffered, done or commenced under the Act …, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act …" 11 Regulations made under cl 2 of Sch 4 may have evidenced a contrary intention (Interpretation Act s 5(2)) which displaced s 30. Compare G F Heublein & Bro Inc v Continental Liqueurs Pty Ltd (1962) 109 CLR 153; Gerrard v Mayne Nickless Ltd (1996) 135 ALR 494, 514 (Gerrard); Attorney-General of Queensland v Australian Industrial Relations Commission (2002) 213 CLR 485, 492-3, 510. The mere existence of the power might also have that effect, but this was not argued and it is not necessary to consider the point. 12 In his clear and helpful argument Mr Neil, for the claimant, submitted that the Court should approach the case in three steps. It should first determine the nature of the right possessed by a potential applicant for relief under s 106 (Esber v The Commonwealth (1992) 174 CLR 430, 439 (Esber)), then whether such an applicant has an accrued or acquired right within s 30(1)(c), and then whether s 30 has been excluded by a contrary intention in Act No 32 of 2002 (Interpretation Act s 5(2)). 13 Section 106 does not confer defined rights on a party to an unfair contract of the relevant kind (Fisher v Madden (2002) 54 NSWLR 179, 184, 193-4). In terms it does no more than confer jurisdiction on the Commission to grant particular relief. The effect of legislation in this form was considered in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141. Latham CJ said (at 155): "… a right is created by the provision that a court may make an order, and such a provision also gives jurisdiction to the court to make the order. The fact that the court may not be bound to make an order, but may exercise a discretion, does not alter the effect of such a provision … Such a provision gives a new jurisdiction to the court and … if the court exercises its discretion in favour of the applicant, a new right to the applicant …" 14 Similarly Dixon J (at 165-6) said of such a provision that: "… it must be taken to perform a double function, namely to deal with substantive liabilities or substantive legal relations and to give jurisdiction with reference to them. It is not unusual to find that statutes impose liabilities, create obligations or otherwise affect substantive rights, although they are expressed only to give jurisdiction or authority …" 15 Such legislation is a modern illustration of Sir Henry Maine's statement that substantive law may be secreted in the interstices of procedure. See also Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443, 461, 467; Fisher v Madden (2002) 54 NSWLR 179, 193. As Meagher JA said in the last case at 183-4: "Section 106 … does not of itself confer any rights or obligations on anyone. Not only does [the appellant] not have a right to a quantifiable order, she does not have a right to an order at all. She has the right to apply for an order, nothing more ." 16 Mr Neil relied on Esber (1992) 174 CLR 430, 440-1 where Mason CJ, Deane, Toohey and Gaudron JJ said: "If it be assumed that the appellant did not have a right to redemption … he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim … Once the appellant lodged an application to the tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the tribunal. It was not merely 'a power to take advantage of an enactment'. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right 'although that right might fairly be called inchoate or contingent'. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act …" 17 He also relied on Gerrard (1996) 135 ALR 494 which concerned applications to the Australian Industrial Relations Commission under sections, later repealed, which broadly corresponded with s 106, and the effect of that repeal. The Industrial Relations Court said at 512-3: "… once the various owner-drivers had made application to the Commission, they acquired a right to have their applications heard and determined. If they made out a ground specified in s 127A(2), they had a right to a decision recording the Commission's opinion to that effect and a right to have the Commission determine whether or not to grant discretionary relief under s 127B(1)." 18 Neither case decides that no right had accrued or been acquired before an application was made under the repealed legislation but both decisions were based on the pending application. 19 Subject to any contrary intention in the repealing or amending legislation s 30 preserves rights which have been acquired or have accrued under the repealed or amended Act. It does not define or describe the nature of the rights that are preserved and the courts have had to work this out over a long period. However "there are now to be found in the authorities helpful touchstones by which to reach the correct answer" per Simon Brown LJ in Chief Adjudication Officer v Maguire [1999] 1 WLR 1778, 1787. 20 We were referred to Maxwell v Murphy (1957) 96 CLR 261, Georgiadis v The Commonwealth (1994) 179 CLR 297 and State of New South Wales v McMullin (1997) 153 ALR 473 but they are not helpful where there is no constitutional restriction on legislative power and no specific cause of action. In the words of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261, 267 there was here no right or liability "which the law has defined by reference to the past events". 21 The more relevant cases are those dealing with statutes which enabled an application to be made for a benefit. The first of these was Abbott v Minister for Lands [1895] AC 425, 431 where Lord Herschell LC said: "It has been very common in the case of repealing statutes to save all rights accrued. If it were held that the effect of this was to leave open to anyone who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far-reaching … Their Lordships … think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment." 22 In Director of Public Works v Ho Po Sang [1961] AC 901, 921-2, where steps had been taken to obtain a certificate from the Governor of Hong Kong in Council, the proceedings were not saved by the Interpretation Ordinance, because the appellant had no more than a hope or expectation. The Privy Council relied on the broad executive discretion given to the Governor in Council and the distinction between an investigation in respect of a right and one to decide whether a right should be created. The legislation under consideration was very different and the actual decision is not helpful. An unfettered executive discretion is very different from a judicial discretion such as that conferred by s 106. 23 In Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 the Privy Council held that the right of a litigant in pending proceedings to appeal as of right to a higher court was a vested right although the lower court had not yet given judgment and an appeal had not yet been filed. It is clear that a prospective litigant would have no such right. 24 Mr Neil relied strongly on Resort Management Services Ltd v Noosa Shire Council [1997] 2 Qd R 291 (Resort Management) a decision of the Queensland Court of Appeal. The company owned land which was injuriously affected by an amendment to the local planning scheme in December 1990 and it had a right to compensation if a claim was made within three years. In April 1991 the section conferring that right was repealed. The company then made its claim within the three years but the council argued that it had no accrued right when the repealing Act commenced. 25 Fryberg J, who gave the principal judgment, said (303-4) that a statutory right available to the public in general is not likely to be an accrued right unless the claimant has taken appropriate steps, or some event has occurred, which makes that right "specific rather than general". He also referred (304) to the distinction drawn by Atkin LJ in Hamilton Gell v White [1922] 2 KB 422, 431 between an abstract right given to a class and a specific right acquired by a member on the happening of some event. 26 He held (305) that the commencement of the amended planning scheme and the injurious affection it caused operated on the general right to confer a specific right on the company subject to lodgement of the claim within three years which was preserved notwithstanding the repeal. When the events occurred the company had a defined cause of action for compensation subject to lodging its claim. As Fryberg J said (308): "Making a timely claim is not one of the elements defining the right but is merely a condition of its exercise. The function of the condition is not to limit the class of people who would otherwise acquire the right … That is why this case differs from cases like Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc [(1960) 103 CLR 422] where commencement of proceedings is the factor that marks out those who have rights … from the public in general … who merely have a right to take advantage of an enactment." 27 Mr Neil also relied on Chief Adjudication Officer v Maguire [1999] 1 WLR 1778, where the repealed provisions created an entitlement to a special hardship allowance if a claim was made within three months. Such an entitlement was held to be a right which had accrued or been acquired prior to the repeal. Simon Brown LJ said at 1787-8: "A mere hope or expectation of acquiring a right is insufficient. An entitlement … even if inchoate or contingent, suffices. The fact that further steps may still be necessary to prove that the entitlement existed before repeal, or to prove its true extent, does not preclude it being regarded as a right … What to my mind all these cases establish is essentially this: that whether or not there is an acquired right depends upon whether at the date of repeal the claimant has an entitlement (at least contingent) to money or other certain benefit receivable by him, provided only that he takes all appropriate steps by way of notices and/or claims thereafter." 28 Clarke LJ said (1790): "… on the facts which I have assumed, a claimant acquired a right under the section when he satisfied the substantive criteria. The existence of that right did not depend upon the making of a claim … the fact that the right may be characterised as contingent on some future event, namely, the making of a claim, is not relevant provided that it can fairly be said that Mr Maguire had a right and not merely a hope or expectation at the date of the repeal." 29 Mr Fernon SC, for the company, submitted that all the claimant had when s 108A took effect was a mere right to take advantage of an enactment which was not preserved by s 30(1)(c). 30 Given that the only right expressly conferred by s 106 is a right to apply to the Commission for specific relief, a would be applicant, as Meagher JA said [para 12] "has the right to apply for an order, nothing more". Even if the contract is unfair and an experienced practitioner could give some estimate of the likely order, there is, as Meagher JA said [para 12], no "right to a quantifiable order". The claimant had no ascertainable right or entitlement defined by reference to past facts similar to the rights to compensation in Hamilton-Gell v White [para 22] and Resort Management [para 20 & foll], the right to the hardship allowance in Chief Adjudication Officer v Maguire [para 24 & foll], or the land rights claim in New South Wales Aboriginal Land Council v Minister (1988) 14 NSWLR 685. 31 The filing of an application under s 106 causes a right to accrue because the applicant acquires (Esber [para 13], Gerrard [para 14]) a legally enforceable right to have the Commission hear and determine the application according to law. This is a new right, different from a mere right to take advantage of the section. 32 There is no other act or event which can convert the general right to take advantage of s 106 into an accrued or acquired right. This is not a case where a right or entitlement automatically accrues or is acquired on an event such as an unfair dismissal, the injurious affection of land (Resort Management), the giving of a notice to quit (Hamilton Gell v White), or an illness causing a special disability (Maguire). 33 Until an application under s 106 is made the right under that section can fairly be characterised as a mere right to take advantage of the section, to use the language of Lord Herschell LC [para 17], and an abstract rather than a specific right to use the language of Atkin LJ [para 22]. 34 In my judgment the claimant was not protected by s 30(1)(c) or the common law presumption from the limitation of the Commission's jurisdiction brought about by s 108A(1). 35 In any event s 108A(1) discloses a contrary intention which excludes both the common law presumption and s 30(1) of the Interpretation Act. In the words of Dixon CJ in Maxwell v Murphy (1957) 96 CLR at 267 "the intention appears with reasonable certainty". The language - "an application can not be made" - is intractable. The restriction which the claimant seeks to place on the effect of the section would require words to be written in, having the effect of an express saving clause, but the words as enacted are unqualified. It follows that the judgment of the Full Bench of the Industrial Commission in Aveling was correct and the following orders should be made:

Colley v Futurebrand FHA Pty Ltd & Anor

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