English v Obszanski

EX TEMPORE REASONS FOR JUDGMENT 1 In this matter the applicant sues the respondent (his former employer) under s 179 of the Workplace Relations Act 1996 (Cth) ("the Act"), to recover the sum of $5656.51 being the balance said to be owing to him for wages and other entitlements. The proceedings were commenced by the filing of an application on 20 April 2000. Although there are two references in the application to an accompanying affidavit or statement of claim, no such documents were filed with the application. Rather, the applicant's solicitors saw fit to annex to the application a photocopy calculation of the monies said to be owing to the applicant, photocopies of two letters from the Industrial Magistrate's Court at Perth to the applicant's solicitors, a copy of a letter from the (Commonwealth) Department of Workplace Relations and Small Business and a copy of a memorandum from that Department indicating that the respondent was respondent to an award known as the Security Officer's (WA) Interim Award 1996 ("the Award"). 2 From the application and the documents annexed to it, it can be seen that the applicant is claiming from the respondent the sum of $5656.51 for short payment of hourly rates, overtime, meal allowance, superannuation and termination pay said to be payable pursuant to the Award. It would appear that the applicant worked as a security officer for the respondent during the period January 1996 to March 1997. 3 When the application came on for directions before me on 6 June 2000, I raised with the applicant's solicitor the question why the application had been brought in this Court. At that time he confirmed that the claim was for $5656.51. 4 At the same time, the applicant sought summary judgment on the basis of a letter written by a solicitor stating that he was acting on behalf of the respondent. The letter, dated 1 June 2000, made an offer of settlement. I formed the provisional view that although that letter was not headed "without prejudice", it was clearly written in an endeavour to settle the matter by payment of the sum of $1500. I made directions that the applicant file and serve written submissions about whether his claims fell within the jurisdiction of any other court and in particular the Industrial Magistrate's Court or the Local Court of Western Australia and why this Court should hear the matter, being a claim for payment to him of $5656.51. I also gave the applicant leave to file and serve any affidavits in support of his oral motion for judgment to be entered in his favour in an amount to be assessed. The respondent was given the right to file and serve submissions and affidavits in response within 21 days of service of the applicant's affidavits and submissions. 5 The applicant has filed an affidavit from which it appears that he has already sued the respondent in the Industrial Magistrate's Court and, as part of those proceedings, sought to recover monies which include the monies sought in this application. Those proceedings were by way of a complaint, on the face of it made under the Industrial Arbitration Act 1979 (W.A.), that between 31 December 1995 and 1 April 1997 the respondent, being a party to an award described as Award No A25 of 1981, had committed breaches of that award by failing to make various payments, including wages and other allowances totalling $6708.94. Particulars annexed to that complaint indicate that that award was the Security Officers Award 1981 of the State of Western Australia. From the applicant's affidavit sworn 27 June 2000 it would appear that, on 17 December 1998, Industrial Magistrate Cicchini awarded the applicant $1052.43 but declined to award him the sum of $5656.51 (being the balance of a total of $6708.94 then claimed). The Industrial Magistrate did so because he determined that as from 17 May 1996 the rights and obligations of the applicant and the respondent respectively were governed by the Award and, as that was a Federal award, he had no jurisdiction to make the orders sought against the respondent. The applicant did not appeal from the Industrial Magistrate's decision and, so I was told by his counsel this morning, has recovered payment of $1052.43 of the judgment then obtained. The Industrial Magistrate also awarded the applicant a penalty of $250. According to the applicant's affidavit sworn on 29 June 2000, the Industrial Magistrate declined to make orders for payment of the balance of $5656.51 in reliance upon a previous decision of his which he identified as "the Cherrypicker'scase". That decision, which the Industrial Magistrate made on 16 July 1998, became the subject of a decision of a Full Court of this Court in Construction Forestry Mining & Energy Union v Allen Warren trading as Aussie Cherrypicker Hire [1999] FCA 312. In that case the Full Court unanimously held, in March 1999, that the Industrial Magistrate had jurisdiction to hear the matters raised in the complaints filed by the appellant in that matter. The appellant's complaints in that case had been for breaches of a Federal award. [In the present case it does not appear whether the applicant has complained of breaches of the (Federal) Award. It may be that the complaint was amended or that the parties proceeded on the basis that the complaint was deemed to have been amended because it seems reasonably clear that the applicant persisted with his claim before the Industrial Magistrate, notwithstanding that the Award had come into force on 17 May 1996.] The Full Court in Cherrypickerallowed the appeal, set aside the decision of the Industrial Magistrate of 16 July 1998 and remitted the matter to the Industrial Magistrate's Court for hearing and determination according to law. 6 I shall not recite all of the arguments advanced by the applicant. It is sufficient to say that they are based on the proposition that the Industrial Magistrate's Court was right in holding that it had no jurisdiction to deal with the matter. I interpolate here to observe that perhaps the Industrial Magistrate might have decided that the formal complaint was not sufficient, citing as it did the relevant breaches as being breaches of the State award, to enable him to deal with the alleged breaches of the Award. But, on the evidence before me, that is not what he did. He declined to make the orders sought on the basis that he had no jurisdiction. That proposition is clearly wrong. Next the applicant points out that this Court has jurisdiction to hear the matters complained of by him in the Industrial Magistrate's Court. That would appear to be true. The applicant in his written submissions, appears to rely on this Court's jurisdiction under ss 178 and 179 of the Act. He certainly relies on s 179. The former section provides for a relevant court (including this Court) to impose a penalty for breach of an award and empowers a court, in such a proceeding, to order an employer to pay an employee the amount of any underpayment. But the present proceedings in this Court are not for the imposition of any penalty. Section 179 relevantly provides, in summary, that an employee may sue in this Court or in any court of competent jurisdiction for payment due under an award. There is a 6 year time limit. The applicant, so it would appear, has chosen to sue, by way of a complaint under s 178, to recover both a penalty (which was awarded) and an underpayment of wages and allowances. His counsel submits, and for present purposes I am prepared to accept the submission but without deciding if it is correct, that the Industrial Magistrate has simply declined to exercise the jurisdiction which he asks this Court to exercise and says that the Industrial Magistrate's Court still has jurisdiction to hear and determine this claim. The applicant asserts that he has a common law right to choose the court in which to sue. In fact he goes so far as to submit that he "… has the power to commence proceedings in the court which he determines at his discretion and it is not for the court to object to the same on the grounds of convenience or any other ground." 7 The respondent in submissions filed well out of time (i.e. this morning) contends that the principle of res judicata applies to the present matter, that if the applicant was dissatisfied with the decision of the Industrial Magistrate's Court, he should have appealed and that this application should be dismissed with costs. He makes other submissions which it is not necessary for me to consider. I indicated to counsel for the applicant this morning that in view of the very late filing of the respondent's affidavit and submissions I would be prepared to adjourn the matter on terms that the respondent would be ordered to pay his costs on an indemnity basis. The applicant chose to proceed. 8 In my view, the Court should decline to exercise its jurisdiction in this matter. The applicant chose to sue in the Industrial Magistrate's Court and was only partially successful. He deserves sympathy, because the Magistrate was quite wrong if, as appears to be the case, he disposed of the matter solely on the basis that he lacked jurisdiction. It may be that the applicant can re-open that matter either by initiating a complaint before the Industrial Magistrate's Court requiring him to exercise his jurisdiction in accordance with the Full Court decision in Construction Forestry Mining & Energy Union, or alternatively, it is possible that he might obtain leave to appeal out of time from the Magistrate's decision. I express no opinion in respect of either of those matters. 9 On the evidence before me to date as to what took place in the Industrial Magistrate's Court, I am not satisfied that the principle of res judicata applies so as to bar the applicant from bringing further proceedings. The evidence strongly suggests that there has not been any determination of the rights asserted by the applicant; rather the Industrial Magistrate simply declined to exercise jurisdiction. If, as the applicant's counsel asserted in written submissions and orally this morning, the Industrial Magistrate's Court still retains jurisdiction under s 179 to hear this claim then that is a further course open to him. The applicant says that despite such circumstances, this Court should exercise its concurrent jurisdiction in this matter. 10 In all the circumstances, I do not think it is appropriate for this Court to exercise its jurisdiction. The appropriate court in which the applicant should proceed is the Industrial Magistrate's Court. The small amount of the claim itself indicates, in my view, that as a matter of proper judicial administration this Court should defer to the jurisdiction of the Industrial Magistrate's Court (see Korn v Paisley Robertson Pty Ltd (1995) 59 FCR 251 at 252). Given the circumstances of this matter, it is to be hoped that the Industrial Magistrate's Court would give every expedition possible to the hearing and disposal of the matter. 11 I considered whether the application should be struck out as the respondent sought. However, as I do not accept the respondent's principal argument, at this stage, that res judicata applies to the present matter, I shall not strike the application out. 12 I think that an appropriate order would be to stay these proceedings so that the applicant may have an opportunity to institute proceedings in the Industrial Magistrate's Court to recover these monies. I propose to order that these proceedings be stayed until further order and that there be liberty to either party to apply. 13 I suggested to the applicant this morning that I might make an order which would result in a District Registrar conducting some mediation. His counsel rejected that suggestion. If that position has changed, I would be prepared to consider deferring the imposition of the stay for a reasonable period to enable mediation to take place. 14 The respondent sought an order that the applicant pay what he described as "my legal disbursements to date". It can be seen that the respondent has adopted the course of not appointing solicitors to represent him on the record, but to advise him, to send the letter referred to above and to prepare an affidavit and submissions for today's proceedings. He has not caused any solicitor to enter an appearance on his behalf. The respondent sought that order on the basis that the application was to be dismissed. That, of course, has not transpired. The costs of today's proceedings will be reserved.