Frost v The Speaker of the Legislative Assembly of New South Wales

Frost v The Speaker of the Legislative Assembly of New South Wales - [2000] NSWIRComm 70 - NSWIRComm 2000 case summary — Zoe

[7]

1 By notice of motion, The Speaker of the Legislative Assembly of New South Wales, the respondent to claims brought by summons filed on behalf of Kristine Frost under s 106 of the Industrial Relations Act 1996, sought an order that the summons be struck out, with costs. The motion depended on the ground that there was no jurisdiction in the Court to grant the relief claimed. 2 The applicant brought her action in respect of a contract of employment with the respondent whereby she performed work in the electorate office of the Hon Peter Nagle MLA as the Member for Auburn in the Legislative Assembly of the State. As such, and even though the applicant was an employee of the respondent, the work was performed for Mr Nagle and was subject to his authority and direction. 3 The initiating summons was filed in the Court on 16 February 1999, amended on 19 April 1999 and further amended on 22 September 1999. The motion was filed on 6 May 1999 and amended on 9 December 1999; for the purposes of the jurisdictional argument raised, the parties agreed that the evidence filed on behalf of the applicant was to be assumed as correct and to be taken at its highest. Further, the parties agreed that various industrial instruments (enterprise agreements and awards) applied to the applicant's employment by the respondent from 9 May 1988 when she commenced employment until 28 September 1998 when she was retired on medical grounds. 4 In considering the motion, argued as a preliminary jurisdictional point, I have done so pursuant to the test laid down by a Full Court ( Fisher P, Hungerford and Peterson JJ) of the former Industrial Court in Nagle (t/as W D & J L Nagle & Sons) v Tilburg [1993] 51 IR 8 at 13, namely, that to succeed on the motion the respondent must establish, in light of the evidence as it presently appears, that the applicant's claims made in the summons could not succeed or were so manifestly faulty as not to admit of argument. This proposition has been since followed in numerous cases in both the Commission and the Court and must now, I think, be taken as settled: see Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364 at 396-397; Clarkson v Dent (1998) 84 IR 250 at 251-252; Bell v Macquarie Bank Ltd (No 2) (1999) 87 IR 126 at 127; Newton v NSW Police Service (1999) 87 IR 66 at 79; Knowles v The Anglican Church Property Trust, Diocese of Bathurst (1999) 89 IR 47 at 48; Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311 at 316; Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 447-448; and Beahan v Bush Boake Allen Australia Limited (1999) 93 IR 1 at 2-3. 5 The specific declarations and orders claimed by the applicant in the further amended summons were as follows : 1. An order declaring void in whole or in part, or varying, either from their commencement or from some other time, the contracts of employment between the applicant and the respondent whereby the applicant performed work in an industry.

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… My submission is that the application is in fact one focused on the particular relationship and the example of the courts focusing on conduct strengthens that argument I submit and it therefore means that this is precisely the scenario which it was very careful to avoid in the authorities I referred to earlier when a strike out should be granted. In my submission not only the strike out is misconceived because it must rely upon a finding that there is no argument. I submit the Court can't finally determine that until the matter is heard. 15 Notwithstanding Mr Howen's concern that the jurisdictional point should not be, as it were, determined at the threshold, I am satisfied that the respondent's propositions (1) and (3) as stated in para 13 above are appropriate, in light of the admitted facts, for determination in a preliminary manner. If they be correct, then the applicant's claims must wholly fail as not being available for relief under s 106. The central fact for such a determination to be made is the admitted existence of the industrial instruments concerned in the context of the relief as sought, or similar relief, in the further amended summons and within the agreed periods of time. 16 However, as to proposition (2) set out in para 13 above I consider its determination, if otherwise jurisdiction exists by reason of adverse findings to the respondent on propositions (1) and (3), would depend upon findings made after a full hearing of the facts. The proposition itself raises very important questions as to the scope or range of the monetary orders which may be made under s 106(5) of the Industrial Relations Act and, having in mind the decision in that respect of the High Court in Brown v Rezitis (1970) 127 CLR 157, it is not an issue which I think should be considered absent such findings. Mr Menzies accepted that approach and, so, I will refrain from further consideration of the orders sought in this respect. In any case, Mr Howen's arguments were still apposite in considering proposition (1) as advanced by Mr Menzies. 17 As to Mr Menzies' proposition (3) concerning the Limitation Act point, Mr Howen denied the applicability of s 14 thereof to actions under s 106 of the Industrial Relations Act on the basis that such actions were not founded on either contract or tort. Essentially, counsel put that s 14 in relevant respects was concerned with actions to enforce rights existing under a contract or for damages for tort whereas s 106 was concerned with whether a particular contract was unfair and, if it was, then to retrospectively avoid it by declaring it void or to vary it by creating new rights - it was in those senses, so the argument went, that s 106 went "beyond the contract" and "beyond determining what people are entitled to under the contract". 18 As it happens, the very arguments put by Mr Menzies in his proposition (1) in para 13 hereof against the existence of jurisdiction were put recently for the present respondent in another matter in which he was also the respondent. The matter was Stonham v The Speaker of the Legislative Assembly of New South Wales [2000] NSWIRComm69, the decision in which was given by me earlier today. For the reasons then given, Mr Menzies' proposition was rejected and the respondent's motion there challenging the Court's jurisdiction under s 106 was dismissed. I have taken the opportunity to reconsider the conclusions thus reached in light of the further argument in the present case. The relevant facts, although different of course in terms of time scale and additional industrial instruments involved, were the same in both cases. Indeed, the relief sought here by way of declarations and orders in terms was conceptually the same as that sought in Stonham . I am satisfied that nothing has been put in the present case to make me doubt the views I expressed in Stonham and which are affirmed. Mr Menzies' argument on this proposition must therefore fail. 19 It only remains to deal with proposition (3) put by Mr Menzies concerning the limitation point, a point which did not arise in Stonham because the proceedings were commenced within six years of the contract being made. If senior counsel be correct then, of course, the applicant's claims relating to the period prior to 16 February 1993, being more than six years before this action was commenced on 16 February 1999, would be statute barred. 20 The provisions of s 14 of the Limitation Act relevantly prescribe as follows : 14. (1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims:

[46]

… 21 Mr Menzies relied on paras (a), (b) and (d) in sub s (1) of the section. Senior counsel's argument was detailed earlier and I do not repeat it. 22 It may immediately be observed that the unfair contracts provisions of previous industrial legislation in the State, being the statutory predecessors of s 106 of the present Act, have been considered to be free of the time limitation barrier set by s 14 of the Limitation Act . For instance, in Irvine v Shell Company of Aust Ltd [1969] AR (NSW) 187 at 189 Sheehy J remarked, but without further reasoning : This type of situation is often met by statutory provisions limiting the time in which actions may be commenced but there is no such restriction in the case of proceedings taken under s 88F. However, s 83 requires the Commission to be governed in its procedure and decisions by equity and good conscience and it seems appropriate in the circumstances to have regard to the equity law in respect of laches. 23 In Hurley v Art Printing Co Pty Limited (Under Administration) (1994) 54 IR 254 at 258-259, I had occasion to refer, with apparent acceptance, to the above cited extract from Irvine v Shell Company . Again, the question was not further reasoned. 24 Counsel before me advised that their research had been unsuccessful in finding any other reported cases on the application of the Limitation Act time bar to proceedings under s 88F, s 275 or s 106 as the successive statutory provisions concerning unfair contracts. My own independent search only resulted in discovering one decision, that of Cahill J in Puckeridge v William Brooks (Holdings) Pty Ltd [1983] 5 IR 280 in which his Honour referred to submissions by the respondent there that the claim made under s 88F was statute barred having regard to the provisions of the Limitation Act but refrained from ruling on those submissions as the case failed on the merits. This issue, therefore, and perhaps surprisingly, would seem to be devoid of reasoned authority directly in point. 25 It is necessary first to restate the submission on this aspect put by Mr Menzies which, as senior counsel's written outlined stated, was that "Section 14 of the Limitation Act 1969 prevents her (the applicant) from maintaining that part of her action that relates to the period prior to 16 February 1993". In other words, as I understood the submission, that part of the applicant's action relating to the period after 16 February 1993 was not statute barred. Having in mind the essential nature of the jurisdiction conferred by s 106, in light of the basis of the bar created by s 14, the submission recognised, it seems to me, the difficulties arising in applying the limitation period to a claim under s 106. 26 The six years' limitation period, as the opening words to s 14(1) make clear, is calculable "from the date on which the cause of action first accrues" to the claimant. The "cause of action" the subject of the time bar, as relied on in this case by Mr Menzies , is one of three alternatives: first, one "founded on contract (para (a)); second, one "founded on tort" (para (b)); or, third, one "to recover money recoverable by virtue of an enactment" (para d)). The question therefore is to be seen as to whether a claim brought under s 106 is an "action" and, if so, whether it is within one of the actions referred to in paras (a), (b) or (d) of s 14(1). 27 I do not doubt that proceedings brought under s 106 are an "action": see Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 per Kirby P at 548, Priestley JA assuming at 552 and McHugh JA at 560-561. It will be seen that their Honours viewed s 88F, as I similarly view s 106, as a legal proceeding before a court so as to be comprehended within the term "action" (or perhaps also a "suit") which term includes every sort of legal proceeding unless the context indicates otherwise: see Re Carter Smith; ex parte Commissioners of Taxation [1908] 8 SR (NSW) 246 at 249; 25 WN (NSW) 92 and Tana v Baxter (1986) 160 CLR 572. 28 Although an action, is the present claim properly described as one within one of the types of actions referred to in the limitation section? The true nature of proceedings under s 106, and of the earlier s 88F and s 275, has been the attention of much judicial consideration. In Minister for Youth and Community Services v Health and Research Employees' Association , for instance, McHugh JA observed (10 NSWLR at p 558): The jurisdiction of the Commission under s 88F depends upon the existence of a contract, arrangement or condition answering the relevant description and nothing else. Unlike an action or suit at law or in equity, jurisdiction does not depend upon the service of a writ or summons. It does not depend on the service of process on any particular respondent. Who then can properly be a respondent to the proceedings? In my opinion any person whose rights or legitimate expectations will or may be affected by the exercise of the power conferred by s 88F is a necessary respondent: Kioa v West (1985) 159 CLR 550. Obviously, the parties to an agreement the subject of the application are necessary respondents. But other persons may also be subject to orders under s 88F: Brown v Rezitis (1970) 127 CLR 157. They too are necessary respondents.

[47]

In explaining the view that such proceedings were not an ordinary suit or action, McHugh JA added (10 NSWLR at p 560) that "the Commission can exercise its power under s 88F in a case where, although the contract was not unfair or harsh or unconscionable or against the public interest at the time of its making, subsequent events have made it so." Nevertheless, his Honour commented "that, when a claim for an unliquidated sum is made against a respondent in proceedings under s 88F, there is much to be said for characterising that claim as an action in tort". That comment, however, needs to be tempered, I think, by what Kirby P said (10 NSWLR at p 549) in that same case as to the structure of s 88F requiring a contract or arrangement to be declared void, or varied, in whole or in part and either ab initio or from some other time on one of the grounds specified in the section before monetary orders may be made: see also BNY Australia Ltd v James (1992) 26 NSWLR 57 at 83, 111; 40 IR 1 at 27, 54. 29 The special nature of an action under s 106 as not being an ordinary suit or action seems to me to be an important indication in considering whether it is indeed properly within the types of actions referred to in s 14(1)(a), (b) or (d). In BNY v James , as a member of a Full Court of the former Industrial Court, I had occasion to consider the nature of s 88F and, after reviewing the authorities, I concluded (26 NSWLR at p 108; 40 IR at pp 51-52) as follows : The result is, in my view, that s 88F of the Industrial Arbitration Act 1940 is to be seen as a very special statutory power separate and distinct from, and unaffected by, an action at common law for breach of contract. Once it be established that a relevant transaction exists within s 88F whereby work is performed in an industry then the Commission has the jurisdiction (or power) to make an order under the section in the exercise of a judicial discretion where it is satisfied that one or more of the grounds contained in the section have been made out; and even though the ground relates to subsequent events as distinct from those existing at the time of the making of the initial transaction, and unaffected by the aggrieved party being able to seek relief also for breach of contract. 30 In the earlier case of Huskisson RSL Sub-Branch Club Ltd v Sullivan (1990) 32 IR 404, the former Industrial Commission in Court Session ( Fisher P, Hill and Hungerford JJ) described the nature of s 88F in terms of its scope, thus (32 IR at p 414) : The subject matter of s 88F may be broadly characterised as dealing with the rights of a party or an interested person:

[50]

The Commission is vested with a discretion under s 88F(2) as to the making of an order for the payment of any moneys in connection with any contract or arrangement declared void or varied. 31 The development of the jurisprudence by reference to the cases was considered recently by a Full Bench ( Wright J, President, Walton J, Vice-President and Hungerford J) of this Court in Beahan v Bush Boake Allen Australia Limited (1999) 93 IR 1 as to s 106 and their Honours expressed the following view (93 IR at p 35) : What emerges from the above authorities, we think, is the now settled view that s 106 (as with the previous s 88F of the 1940 Act and s 275 of the 1991 Act) is directed to an impugned contract of employment, whether existing or terminated, as to the fairness of its express or implied terms. Such unfairness will depend upon the facts of each particular case by focusing attention on the contractual relationship between a particular employer and employee and where the unfairness may arise from the terms of the contract itself, the surrounding circumstances and/or the manner of performance or operation of the contract. The section, we emphasise, is not concerned with re-establishing an employment relationship which has ended nor with compensating an employee for the loss of his employment contract. In other words, the section is properly concerned with the fairness of the terms of a contract of employment in its various respects and, if relevantly found to be unfair, to provide remedial relief by avoiding or varying the terms of that contract and to order the payment of money in connection with any contract so avoided or varied as is considered just in the circumstances of the case. 32 For present purposes, my opinion is that the following significant features of s 106 may be drawn from the settled authorities and from the plain terms of s 106 itself - (1) The section is a very special statutory power separate and distinct from, and unaffected by, an action at common law or in equity.

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(12) The section contains no express limitation period for the bringing of a claim nor does the Industrial Relations Act elsewhere prescribe any limitation period. 33 I referred earlier to the apparent difficulties arising in applying the limitation period to s 106 by reason of the recognition in Mr Menzies' submission that the bar would operate on that part of the applicant's claim relating to the period prior to 16 February 1993. The above summary of the features of s 106, I am satisfied, makes those difficulties manifestly clear. Fundamentally, as I read it, s 14(1) is concerned with providing a defence to an action by a six years' limitation period, from the date the cause of action first accrued, whereas jurisdiction is available under s 106 to make declarations and orders once there be a contract, arrangement or related condition answering the relevant description: see Stevenson v Barham (1977) 136 CLR 190 at 192, 198-199, 201; and Caltex Oil (Australia) Pty Ltd v Feenan [1981] 1 NSWLR 169 at 171, 173-174. Of course, in any particular case before relief be granted the applicant therefor would have to establish one or more of the grounds stated in the section as to unfairness, but it would be incompatible with the nature of the jurisdiction so provided to limit by a time bar the ability to exercise that jurisdiction. This point receives support once it be the position, as it is, that the impugned transaction may be remedied by avoidance or variation either ab initio or from some other time - such a power, in my view, and explicit as it is in the section without a limitation period being contained therein, is simply inconsistent with the concept of a time limitation period. 34 Given, as I consider to be the case, the power under s 106 to make declarations of avoidance or variation from the commencement of a contract, arrangement or related condition, which may well be effective more than six years before an action is brought, any order for the payment of money in connection with the transaction so declared void or varied must similarly be referable to that same date of avoidance or variation. Otherwise, in my view, the power under the section to make an order for the payment of money considered just in the circumstances of the case would be circumscribed and frustrated. In other words, if there be power to avoid or vary a relevant transaction from a date free from the limitation period of six years then it must be the case, as a pure matter of consistency in statutory construction, that an order for the payment of money in connection therewith similarly may be made free of the limitation period. 35 The above "fundamental" point, as I have described it, depends upon giving effect to the plain terms of the power given to the Court by s 106 to make declarations and orders free from a defence under the Limitation Act and is sufficient to find against Mr Menzies' argument. However, and in addition, I think the case law as developed from the terms of s 106 points to the same conclusion, particularly having in mind the type of actions to which s 14(1) is directed. 36 Whatever else may be said about the scope of s 106, it is demonstrably clear from the authorities that it is a statutory power of a special nature and distinct from an ordinary action or suit at common law or in equity. Indeed, it is concerned not only with "any contract" but also with "any arrangement" and with "any related condition or collateral arrangement". It is difficult, therefore, and I do not think properly open, to characterise an action brought under it as being within the usual remedies recognised in the general law, certainly not those founded on contract; the section extends coverage to arrangements and related conditions - as Sheldon J remarked in Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 at 373 concerning the section's drastic and pervasive effect, "Nor does it tolerate argument on such nice questions as whether the contractual relationship has been perfected. It is sufficient that there be an 'arrangement' and, for good measure, 'conditions and collateral arrangements' are also included." I do not apprehend it could be the case that where a contract per se was impugned under the section that the limitation period would apply but a challenged arrangement, related condition or collateral arrangement not having contractual force would not be so barred. 37 Section 14(1) of the Limitation Act , clearly on its face, is directed to the types of actions available in the ordinary course, such as those founded on contract and tort. The subject matter of s 106, in my view, and as the settled authorities make clear, is concerned with the statutory right of a party or interested person to bring a claim to have declared void or varied a contract, arrangement or related condition answering the relevant description on the ground of unfairness being established. If such a declaration be made then, and only then, may a monetary order be made in connection with such avoided or varied transaction. That characterisation of the subject matter and focus of s 106 is not apt, in my view, to describe as being founded on contract or tort as referred to in s 14(1)(a) or (b). 38 And neither do I consider the subject matter so described to be within s 14(1)(d) as an action to recover money recoverable by virtue of an enactment. Such actions are typically those to recover liquidated sums where a statute gives the right of recovery, such as the recovery of remuneration and other amounts due under an industrial instrument by virtue of Pt 2 of Ch 7 of the Industrial Relations Act . Section 106, in its terms, does not itself give a right to recover money, rather it enables an order to be made in favour of a person for the payment of money by another in connection with a relevant transaction declared void or varied in such amount as is considered just. 39 In the result, I conclude that s 14(1) of the Limitation Act has no application to actions brought under s 106 of the Industrial Relations Act . Therefore, in my view, no part of the present claim by the applicant is statute barred. 40 The grounds of the respondent's motion have not been made out so that the applicant's claims made in the further amended summons are within the jurisdiction of the Court under s 106; leave is reserved, however, to the respondent to challenge on jurisdictional grounds at the trial of the action the orders sought for compensation for stress and suffering in the course of the applicant's employment and for impairment of employment prospects and reduction in quality of life. 41 A significant barrier has been overcome by the applicant in successfully resisting the motion, a motion which raised important issues in the proceedings. She should have her costs. 42 I order that the respondent's motion be dismissed, with the applicant's costs thereof to be paid by the respondent.

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