General Motors-Holden's Ltd v Di Fazio

(b) an action to try the validity of an election or of title to an office;

(c) an action to try the validity of an assessment, rate or loan made by or to a local government body; and

(d) any other action to the nature or purpose of which the limitation is, in the opinion of the court, essential.

Section 48 confers a general power on courts to extend in particular cases the time limited or prescribed for instituting an action or for doing any act in an action or for doing any act with a view to instituting an action. Section 48 (1) and (2) provide:

(1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for -

(b) doing any act, or taking any step in an action; or

(c) doing any act or taking any step with a view to instituting an action,

a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.

(2) A court may exercise the powers conferred by this section in respect of any action that -

(b) the court would, if the action were not out of time, have jurisdiction to entertain.

Section 3 (1) of the Act defines the word "action", in the absence of a contrary context, as including "legal proceedings of all kinds".

All the members of the Full Court took the view that proceedings under s. 15 (1) (e) fall within s. 47 (1). However, they held that such proceedings also fall within s. 47 (2) (d) on the ground that the limitation of twenty-one days in s. 15 (1) (e) is essential to the nature or purpose of the proceedings for which it provides. In so concluding the Court evidently accepted the reasoning in a previous decision of the Industrial Court, Coleman v. Redapple Restaurants Pty. Ltd. [2] . There a majority of the Court (Judge Olsson and Judge Allan) held that proceedings pursuant to s. 15 (1) (e) are a type of action to the nature and purpose of which the time limitation is essential and that s. 47 (1) of the Act has no application to them. On the other hand, they held that s. 48 of the Act did apply to the proceedings and empowered the Court to extend the time. Stanley J., who dissented, considered that the time limitation of twenty-one days was "absolutely necessary" to the proceedings, that it was not extended by s. 47 (1) and that it was not capable of being extended pursuant to s. 48. The majority in the Full Court of the Supreme Court (King C.J. and Williams A.J.) appear to have acted on the view of the majority in Coleman's Case. Jacobs J., who dissented in the Full Court, thought that a time limitation which was essential within the meaning of s. 47 (2) (d) could not be extended under s. 48.

Following the decision in Coleman's Case, the Industrial Court, by order under s. 48, extended the time within which Coleman could commence proceedings under s. 15 (1) (e). The correctness of this order was challenged in proceedings for a prohibition in the Full Court of the Supreme Court. The Full Court declined to grant prohibition on the ground that, if an error had been made, it was an error of law made in the exercise of the Court's jurisdiction (Reg. v. Stanley; Ex parte Redapple Restaurants Pty. Ltd. [3] ). The reasons given by Bray C.J. for arriving at this result are relevant to the question now under consideration and I shall refer to them shortly.

Section 15 (1) (e) is a somewhat unusual provision. It confers jurisdiction to make an order in favour of the applicant but it prohibits the Court from exercising the jurisdiction thereby conferred except on an application made within twenty-one days from the date on which it is alleged that the applicant was dismissed. The sub-section does not, as was suggested in argument, condition the existence of the Court's jurisdiction on the fact of an application having been made within the prescribed time. The point was made by Bray C.J. in Reg. v. Stanley; Ex parte Redapple Restaurants Pty. Ltd. when his Honour drew the traditional distinction between the existence of jurisdiction and the exercise of jurisdiction. His Honour said [4] :

The last clause of the sub-section imposes a time limit but not in words which deny jurisdiction to hear claims made after its expiry; rather, it seems to me, in words which acknowledge the existence of the jurisdiction but control its exercise.

It seems to me that this unusual form of words must have been chosen for a purpose: and the obvious purpose seems to me to make violation of the prescription in question an error of law indeed, but not an excess of jurisdiction.

Later, the Chief Justice said [4] : Parliament has said in effect: "The Court has jurisdiction to entertain claims made after twenty-one days from dismissal. That is part of the "jurisdiction conferred on it by this paragraph". But it is not to exercise it." The result is that if the Court does purport to exercise it, it has made an error of law within its jurisdiction but has not exceeded it. 1. (1976) 13 S.A.S.R., at p. 295. 2. (1976) 13 S.A.S.R., at p. 295.

There is some slight difference in language between the opening words of s. 47 (1) and those of s. 48 (1) (a). Nevertheless it is apparent that both sections are directed to statutory limitations of action, that is, statutory provisions which fix the time within which legal proceedings may be brought or instituted, though s. 48 (1) applies to other time limitations as well (see s. 48 (1) (b) and (c).) The most common illustration of the statutory limitation of action is that which operates to bar the remedy or to bar the right and the remedy unless an action is commenced within a prescribed time. There is, however, no reason to think that the two sections are confined in their application to limitations of this kind. The expression "cause of action" frequently signifies an antecedent right asserted by a plaintiff. However, in the context of a general provision dealing with limitations of actions and applicable to "all actions" except those mentioned in s. 47 (2), it should be given the wider meaning "cause of complaint". Moreover, the width and generality of the statutory definition of the word "action" indicate that the provisions are not restricted to actions in which the plaintiff seeks to enforce an antecedent legal right. Quite obviously they extend to proceedings in which the making of the order sought is the source of the right sought to be established (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [5] ).

The applicant attempted to avoid this conclusion by submitting that action in s. 48 (1) should be narrowly construed, despite the presence of the statutory definition in s. 3 (1). Reliance was placed on the expression "criminal proceedings" in s. 48 (3). However, this expression is not in any way inconsistent with the definition. Reference was also made to s. 48 (5) which enables the Court to determine proceedings under s. 48 "at any time before or after the close of pleadings". It scarcely needs to be said that to proceed without more from this premiss to the conclusion that s. 48 applies only to actions involving a writ and pleadings would be to perpetrate a fundamental error in logic.

The language of s. 47 (1) and s. 48 (1) is apt to apply to any statutory limitation fixing the time within which proceedings may be brought, whether the limitation bars the right or the remedy, whether it deprives the Court of jurisdiction or, I would add, of power to make an order. That s. 48 applies to a limitation which conditions the existence of jurisdiction on an application made within a time prescribed is made clear by s. 48 (2) (b). True, there is no similar provision which in terms attests the application of the section or of s. 47 (1) to a limitation which prohibits the exercise of jurisdiction otherwise conferred except on an application made within a time prescribed. However, s. 48 (2) (a) makes it clear that the power conferred by s. 48 (1) may be exercised in respect of any action which it "has jurisdiction to entertain". Under s. 15 (1) (e) the Court has jurisdiction to entertain an application made out of time, though there is a prohibition against the exercise of jurisdiction in such a case.

Section 48 (2) (b) confirms the impression that I gather from reading s. 47 (1) and s. 48 (1). They identify statutory provisions by reference to their effect in limiting the time in which proceedings may be brought; the two sub-sections do not otherwise refer to the character of the provisions or to the means by which the limitation operates to defeat the plaintiff's claim. It would be quite wrong to import into the two sub-sections a qualification, based on s. 48 (2) (b), that the two sub-sections have no application to a limitation which operates by prohibiting the exercise of jurisdiction except on an application made within the prescribed time, whilst conceding that they may apply to a limitation which conditions the existence of jurisdiction on such an application. Section 48 (2) (b) does not extend the language of s. 48 (1). Section 48 (2) (b) is designed to ensure that an extension of time may be granted, notwithstanding that otherwise the Court may lack jurisdiction to make the order.

The consequence is, in my opinion, that proceedings under s. 15 (1) (e) would fall within s. 47 (1), but for the circumstance that they fall within s. 47 (2) (d). It was conceded by the respondent that proceedings under s. 15 (1) (e) fall within s. 47 (2) (d) in accordance with the majority view in Coleman's Case [6] . I see no reason to doubt the correctness of this concession. As an employer is likely in many cases to engage another person to take the place of a dismissed employee, and as proceedings under s. 15 (1) (e) may result in an order for the reinstatement of the dismissed employee, it is obvious that the time limitation of twenty-one days is essential to the nature and purpose of the proceedings.

It follows from the interpretation that I have placed on s. 48 (1) that this sub-section then applies to proceedings under s. 15 (1) (e). In expressing this conclusion I have not overlooked the applicant's argument that this interpretation could produce injustice to an employer who dismisses an employee aged seventeen years, because s. 45 of the Act, if given a similar interpretation, independently extends the period of the statutory limitation for the period of the employee's legal disability. The answer to this submission is that under s. 48 (1) the Court will not exercise its discretion in favour of an applicant where to do so would cause injustice and that, in any event, the Court would not exercise its undoubted discretion under s. 15 (1) (e) to order reinstatement where that order would cause a like result.

It may seem curious that s. 48 enables an extension of time to be granted in a case in which the initial limitation of time is thought to be essential to the nature and purpose of the proceedings within the meaning of s. 47 (2) (d). This is a consequence of the way in which s. 48 is expressed, for it contains no exceptions corresponding to those mentioned in s. 47 (2).

The final argument that needs to be considered is the applicant's submission that the provisions of s. 48 are inconsistent with the provisions of the General Motors-Holden's Ltd. (Part 1) General Award 1976 made under the Conciliation and Arbitration Act 1904 (as amended), which binds the parties to these proceedings and that, to the extent of the inconsistency, s. 48 is inoperative by virtue of s. 109 of the Constitution (see Reg. v. Industrial Court of South Australia; Ex parte General Motors-Holden's Pty. Ltd. [7] ; Reg. v. Clarkson; Ex parte General Motors-Holden's Pty. Ltd. [8] ). The argument is based on cll. 3 (b) and 6 (i) of the Award. They provide respectively:

(b) From the date of coming into operation of this award any other award or determination or ordinance or State Act or industrial provision which might otherwise have applied to employees covered by this award shall be as a term and condition of this award excluded from applying to such employees and the Company. Provided, however, that this sub-clause shall not affect the operation of the Vehicle Industry (Long Service Leave) Award 1965 as amended from time to time. And further provided that this sub-clause shall not affect the operation of section 15 (1) (e) of the Industrial Conciliation and Arbitration Act 1972-1974 of the State of South Australia or any order made thereunder (and shall be deemed never to have affected such operation).

The provisions as to termination of employment by the Company contained in this clause shall, in the case of employees employed within the State of South Australia, be subject to the operation of the provisions of section 15 (1) (e) of the Industrial Conciliation and Arbitration Act 1972-1974 of that State. In the case of an employee ordered to be reemployed in his former position pursuant to the provisions of that section, the conditions of his employment upon such reemployment shall be not less favourable to the employee than would have been the case if he had not been dismissed from his employment.

1. (1975) 10 S.A.S.R. 582. 2. (1976) 134 C.L.R. 56.

The argument is that these references to s. 15 (1) (e) relate to that provision read in isolation from other statutory provisions which apply to it. It is not an interpretation which I accept. The Award should be read as referring to s. 15 (1) (e) in its context in the general body of State law so that the provision is read for the purposes of the Award in the light of the meaning and application which it has under State law, including the application to it of the provisions of the Act.

For these reasons I would grant special leave to appeal and dismiss the appeal.

I agree with Mason J. Special leave should be granted, but the appeal should be dismissed.