Larsen v Ondeo Nalco Australia Pty Ltd - [2004] NSWIRComm 123 - NSWIRComm 2004 case summary — Zoe

NSWNSWIRComm

Larsen v Ondeo Nalco Australia Pty Ltd

[2004] NSWIRComm 123

Industrial Relations Commission (NSW)|2004-07-01|Before: Marks J

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2004-07-01

Before

Marks J

Source

Original judgment source is linked above.

Judgment (68 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Larsen v Ondeo Nalco Australia Pty Ltd [2004] NSWIRComm 123 APPLICANT William Edward Larsen PARTIES : RESPONDENT Ondeo Nalco Australia Pty Ltd FILE NUMBER: 365 of 2004 CORAM: Marks J CATCHWORDS : Interlocutory judgment - application to strike out summons for relief alleging unfair contract - effect of s 108B considered - applicant's summons for relief filed later than 12 months after termination of contract of employment - application of Interpretation Act considered - intention of legislature - no relevant contrary intention found - whether accrued right - right to have claim considered - previous decisions distinguished - whether common law presumption against retrospective application to accrued rights displaced - distinction between substantive and procedural amendments unclear - summons struck out. Acts Interpretation Act 1901 s 8 Aboriginal Land Rights Act 1983 (NSW) LEGISLATION CITED : Industrial Relations Act 1996 Industrial Relations Amendment (Unfair Contracts) Act 2002 Interpretation Act 1987 Workplace Relations Act 1996 (Cth) Abbott v Minister of Lands (1985) AC 425 Attorney-General (QLD) v Australian Industrial Relations Commission (2002) 76 ALJR 1502 Beahan v Bush Boake Allen Australia Limited (1999) 47 NSWLR 648 Bowker v Software Engineers Australia [2003] NSWIRComm 213 Carr v Finance Corporation of Australia Limited (No 21) (1982) 150 CLR 139 Crowe v UCS Developments Pty Ltd [2003] NSWIRComm 234 Director of Public Works v Ho Po Sang (1961) AC 901 Esber v The Commonwealth of Australia (1991-1992) 174 CLR 430 Fisher v Madden (2001) 54 NSWLR 179 Free Lanka Insurance Co Ltd v Ranasinghe (1964) AC 541 GIO Australia Limited v O'Donnell (1996) 70 IR 1 CASES CITED : Hollingsworth v Commissioner of Police (1998) 47 NSWLR 104 Kennedy v Contract Transport Solutions [2003] NSWIRComm 158 Majik Markets Pty Ltd v Brake and Service Centre Drummoyne Pty Ltd (1991) 28 NSWLR 443 Mathieson v Burton (1970-1971) 124 CLR 1 Maxwell v Murphy (1956-1057) 96 CLR 261 Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 Mullins v People Bank of Australia Pty Ltd [2003] NSWIRComm 457 NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685 R v Commonwealth Court of Conciliation and Arbitration, Ex parte Barrett (1945) 70 CLR 141 R v Kearney, Ex parte Northern Land Council (1984) 158 CLR 365 R v Kelly, Ex parte State of Victoria Rodway v R (1990) CLR 515 at 519 Yrttiaho v Public Curator (Queensland) (1971) 125 CLR 228 HEARING DATES: 05/11/2004 DATE OF JUDGMENT: 05/20/2004

[19]

(1) The amendment or repeal of an Act or statutory rule does not: (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. (2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect: (a) the proof of any past act or thing, or (b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or (c) any amendment or validation made by the Act or statutory rule, or (d) the operation of any savings or transitional provision contained in the Act or statutory rule. (3) This section applies to the amendment or repeal of an Act or statutory rule in addition to, and without limiting the effect of, any provision of the Act or statutory rule by which the amendment or repeal is effected. (4) In this section, a reference to the amendment or repeal of an Act or statutory rule includes: (a) a reference to the expiration of the Act or statutory rule, (b) a reference to an amendment or repeal of the Act or statutory rule effected by implication, (c) a reference to the abrogation, limitation or extension of the effect of the Act or statutory rule, and (d) a reference to: (i) the exclusion from the application of the Act or statutory rule, or (ii) the inclusion within the application of the Act or statutory rule, of any person, subject-matter or circumstance.

[34]

23 A convenient starting point is the decision of the Privy Council in Director of Public Works v Ho Po Sang (1961) AC 901. The factual circumstances which were being considered by the Privy Council in those proceedings were far removed from the factual subject matter of these proceedings. The lessee of Crown lease premises in Hong Kong had served by way of cross-petition a notice to the Governor in council challenging the issue of a rebuilding certificate by the Director of Public Works which had the effect of requiring vacant possession of the leased premises. The underlying legislation was repealed after the cross-petition had been lodged and the Privy Council was required to consider whether the repeal of the legislation was saved by the Hong Kong interpretation ordinance, the relevant part of which is for present purposes in identical terms with s 30(1)(c) of the Interpretation Act. The Privy Council distinguished between "an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given." (at 922). Their Lordships did not characterise the right to lodge a cross-petition as being an accrued right for the purpose of the interpretation ordinance. Their Lordships adopted the approach taken in a previous Privy Council decision, Abbott v Minister of Lands (1985) AC 425, to the effect that a "mere right…. 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." (at 1895 AC 431). That is, a power to take advantage of an enactment may be a "right", but it is not an accrued right for the purposes of the interpretation legislation. The Privy Council characterised the consideration by the Governor in Council of the cross-petition as being in the nature of an investigation as to whether there was a right at the time that the underlying enactment was repealed, being an investigation which of itself would decide whether a right should or should not be given. Such an entitlement was not of itself a right or privilege which was preserved by the interpretation ordinance.

[36]

25 There are other appellate decisions which have touched upon this area. I refer in particular to Esber v The Commonwealth of Australia (1991-1992) 174 CLR 430, a decision of the High Court of Australia and also to re Ross ex parte Australian Liquor Hospitality and Miscellaneous Workers Union (2001) FCA 770, a decision of the full Federal Court of Australia. Without in any way intending any disrespect to the various judgments contained within both of those decisions, I am of the view that I may conveniently deal with the principles considered in those decisions by again referring to the more recent decision of the High Court of Australia in Attorney-General (QLD) v AIRC. Those proceedings considered applications made by certain trade unions under the Workplace Relations Act 1996 (Cth) to the Australian Industrial Relations Commission seeking that certain awards be made as against certain named employers. The Commission commenced to hear the applications for the making of those Awards but whilst it was part-heard the Workplace Relations Act was amended to require the Commission to cease dealing with certain industrial disputes. The Commonwealth Acts Interpretation Act 1901, s 8, contained provisions which were identical to those of s 30(1)(c) of the New South Wales Interpretation Act. One of the questions for determination by the court was whether s 8 of the Commonwealth Acts Interpretation Act preserved the ability of the AIRC to continue dealing with the particular industrial disputes. Accordingly, it was necessary to ascertain whether the unions had acquired or accrued a "right" of the kind referred to in the saving provision of the Interpretation Act. The majority judgment (Gaudron, McHugh, Gummow and Hayne JJ) put the matter this way: "The respondent unions do not assert that they had acquired or accrued a "right" to an award. Rather, they submit that they had acquired or accrued the "right" to have their disputes arbitrated in accordance with s 104 of the 1988 Act. Describing the putative right in this manner, however, says little about its legal nature or the way in which it may be enforced. The right acquired or accrued by the respondent unions is more accurately described as a public law right to require the Commission to observe its duty to comply with the law as it exists from time to time. A right of that nature, where it exists, is a right to have a claim or application considered in accordance with the statute that governs its determination." (at paragraph 40).

[37]

26 In the course of considering this matter the majority judgment focussed on the fact that the AIRC was exercising arbitral powers as opposed to judicial power in the context of characterising such rights that an applicant for a determination has. The members of the court said: "Where what is involved is the exercise of judicial power, that often will require the determination of pre-existing rights or liabilities. This is illustrated by those functions which are appropriate exclusively to judicial action, including the determination of criminal guilt, actions in contract and tort, and suits to enforce trusts. The term "pre-existing rights" will take its content from the state of affairs at some stage before the judicial determination, such as the accrual of a cause of action or institution of an action or application. Hence the ready accommodation here of notions of accrued rights within the sense of s 8 of the Interpretation Act. Different considerations applied to the exercise of arbitral functions under the 1904 Act and the 1988 Act. The arbitrator was empowered to make a determination not of existing legal rights and liabilities, but as to the conditions to prevail in the future between the parties to the dispute; the statute gave to the terms of the determination the character of legal rights and obligations. Thus, in R v Kelly; Ex parte State of Victoria , the Court said: 'When it is said that industrial awards are of a legislative character, the point of the statement is to be found in the fact that such awards prescribe rules of conduct for the future in respect of the disputing parties and do not determine the rights and duties of those parties under the law as it already exists.' The requirement, enforced by mandamus, that the arbitrator hear and determine a matter according to law allowed for changes in the content of that law which founded the duty which attracted the remedy. If before the making of the award prescribing rules of conduct for the future, the law was changed to place additional restraints or conditions upon the exercise of the power to make the award, then the obligation to make a determination according to law was correspondingly modified. In this way, the content of the public duty and correlative right to its discharge was fluid rather than fixed and notions of "accrued" rights in the law as it stood at any particular stage in the arbitral processes had no place." (at paragraphs 44, 45 and 46).

[43]

32 Before discussing relevant authorities, Hope JA determined by reference to the legislation providing for an appeal to the Land and Environment Court that the power vested in that court was "not a discretionary power but a power which it is bound to exercise in favour of the claimant in the circumstances specified in the subsection". His Honour then considered the nature of the right which accrued to the Land Council after it had made its claim, whilst its claim was being investigated by the Minister and after the appeal had been lodged with the Land and Environment Court. His Honour commenced his discussion by saying "It is easier first to say what (the right) was not. It was not a mere right existing in the members of the relevant class of the community to take advantage of an enactment, without any act done by an individual towards availing himself of that right…nor was it a right to set in train an application for a grant which the Minister or on appeal, the court might, as a matter of discretion, grant or refuse." (at 693). His Honour then considered the decision of the Privy Council in Ho Po Sang. After noting the conclusion of the Privy Council that the lessee in Ho Po Sang "had no more than a hope or expectation that he would be given a rebuilding certificate even though he may have had grounds for optimism as to his prospects," Hope JA concluded that the rights conferred by the Aboriginal Lands Right Act did not fall into that category. His Honour said: "On the other hand the Act does not in terms expressly confer a right in the land on the applicant at the time the claim is made. It envisages that there will be an investigation by the Minister of the facts and if the facts establish that the conditions in the definition are satisfied the Minister is then bound to grant the claim. If the Minister refuses, the court on appeal again investigates the same matters but the onus is put on the Minister. As it seems to me, assuming the conditions were in fact satisfied, the Land Council did not merely have a right to have its claim investigated; it had a right to have the claim granted. If the Minister wrongly refused to grant it, it had the right to have the court grant it. The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional. In this regard the legislation is quite different from that considered by the High Court in R v Kearney; Ex parte Northern Land Council (1984) 158 CLR 365 where under the relevant Land Rights Act, as Gibbs CJ pointed out (at 373), an application, to be successful, 'must attract the favourable exercise of three independent discretions - those of the Commissioner, the Minister, and the Governor-General ...'." (at 694).