Prentice v Nugan Packing Co Ltd

The plaintiff's claim was founded upon the statutory liability created by this provision. Sub-section (2) consists of four separate paragraphs. The first of them runs thus: - "Such person may apply in the manner prescribed to an industrial magistrate for an order directing the employer to pay the full amount of any balance due in respect of such price or rate which became due during the period of twelve months immediately preceding the date of the application (where such person is still in the employment of such employer at that date) or within the last twelve months of the employment with such employer (where the employment was terminated before the date of the application)."

This paragraph, as will be seen, restricts the period in respect of which arrears of wages may be recovered. The paragraph which follows it, the second paragraph, deals with the time within which an application to an industrial magistrate must be made for an order for payment when the employment has been terminated. It provides that an application under the sub-section made after the termination of the employment shall be made not later than six months after the date of such termination.

The third paragraph of sub-s. (2) makes agreements to the contrary and payments of lesser sums no bar to an order and empowers the industrial magistrate to award costs. The fourth paragraph authorizes the industrial magistrate in a proceeding under s. 92 to impose penalties for offences against the sections relating to breaches of awards and to failure to keep time sheets and pay sheets.

The material part of sub-s. (3) is expressed as follows: - "Such person may, in lieu of applying for an order under sub-section two of this section, sue for any balance due as aforesaid in any district court or court of petty sessions." The sub-section then goes on to give an appeal to the Industrial Commission from a judgment or order of the district court or court of petty sessions, just as an appeal is given from an industrial magistrate by s. 120 (1).

The question whether the limitation of six months from the termination of the employment imposed upon the application to an industrial magistrate by sub-s. (2) of s. 92 affects the recovery of wages under sub-s. (3) appears to me to depend upon the operation of the words in sub-s. (3) "in lieu of applying for an order under sub-section two of this section". Do those words imply that the plaintiff must at the time he sues be in a position to apply under sub-s. (2) to an industrial magistrate? If so, it follows that if he is out of time for making such an application he is not in a position to maintain an action under sub-s. (3).

Sub-section (3) gives a right of suit "in lieu of", that is "in place of" or "in substitution for", a right to apply. In my opinion the prima-facie effect of a grant of such a right is to make it necessary that the first or primary right to proceed shall subsist as an available alternative. It gives a choice of a second form of proceeding as a substitute for the first. If the first has gone and is no longer available how can it correctly be said that in resorting to the second the claimant is pursuing it in place of the first, which ex hypothesi no longer exists?

I think that the prima-facie effect of the language employed is to give the alternative remedy so long only as the primary remedy is open. Accordingly, unless the prima-facie meaning is displaced, when six months have elapsed from the termination of his employment, the former employee cannot sue in the district court for the balance of wages underpaid during the last twelve months of his employment as he might within the six months. Then what grounds are there for displacing the prima-facie meaning of sub-s. (3)?

The grounds put forward appear to me to be reducible to two reasons.

First there is the use in the second paragraph of sub-s. (2) of the words "under this subsection" after the words "an application" and the absence of any similar words in sub-s. (3). It is said that this points to an intention to confine the operation of the time limit to applications to industrial magistrates. But if it is correct that the remedy under sub-s. (3) is substitutional for that under sub-s. (2), why should the limitation be repeated? The intention in sub-s. (2) is to limit the application to the magistrate to a period of six months and naturally the words "under this subsection" are used to describe the nature of the application upon which the time limit is imposed. But that throws no light on the question whether the proceeding under sub-s. (3) was intended to be strictly "in place of" that under sub-s. (2) or to be more extensive in its availability in point of time.

Secondly, reliance is placed upon the history of the amendments to s. 92 since it was enacted in the consolidation of 1940. In that consolidation, as in the corresponding previous enactment, the provision contained in s. 92 was based upon a different policy. There was not a limitation of twelve months in respect of the period for which wages might be recovered. There was, however, throughout the section a limitation of six months, from the date when wages were due, upon the period within which proceedings for their recovery might be commenced whether by application to an industrial magistrate or by action in the district court or complaint in petty sessions. To bring about this result sub-s. (2) provided that such person might within six months apply to an industrial magistrate for an order for payment and sub-s. (3) provided that such person might within the said period of six months in lieu of applying for an order under sub-s. (2) sue for any balance due in a district court or court of petty sessions. Now when in 1943 the section was amended to bring about the present position in which twelve months' wages can be recovered by an application to the industrial magistrate but only if made not later than six months after the termination of the employment if that has happened, both sub-s. (2) and sub-s. (3) necessarily underwent a recasting. In sub-s. (3) the words "within the said period of six months" were omitted. It is said that by omitting them the legislature indicated its intention that no such time bar should apply to an action. This inference goes beyond the evident reason for the amendment. Once sub-s. (2) was recast so as to do away with the limitation of six months from the time when the money became due to give a right to an order for twelve months' wages, it became necessary to take out these words from sub-s. (3). It was necessary to do so because the new limitation of six months applied only when the employment was terminated and not to the case of the employment remaining on foot.

There is therefore an explanation of the repeal of those words which does not support the inference that it was intended to create a right of suit barred only by the expiry of the period appropriate to statutory obligations. It is said, and with truth, that it would have been easy for the legislature to write in again in sub-s. (3) a limitation fully expressed in suitable words. But the inference to be drawn from the failure of the legislature to express itself with more directness and fullness is speculative. If speculative inferences are to be considered, it may equally well be said that if the legislature intended to make an important departure from the principle to which it had so long adhered of limiting the time for the recovery of wages under an award to a comparatively short period and to do so by introducing an otherwise irrational distinction between an application to a special magistrate and a proceeding in petty sessions or in a district court, it might have been expected to do so in clear and express language. But the better course is to avoid such speculations and to adhere to the meaning of the text the legislature has adopted. It does not matter that the text is formed by a process of amendment. The amendments are made textually and the result is a recension which should be read and construed as the formal expression of the legislative will. So read, I think the prima-facie meaning accords with the interpretation adopted in the Supreme Court and that there is nothing to displace it. I think that the decision of the Supreme Court as to the meaning of the statute is right. But I am not disposed to think that the time limit goes to the jurisdiction of the district court: see Parisienne Basket Shoes Pty Ltd. v. Whyte [1] ). If so proceedings by prohibition are in my opinion misconceived. Be this as it may, this point was not taken in the Supreme Court or by counsel here. If it were taken here, it ought in my opinion only to lead to our rescinding special leave. I therefore think the appeal should be dismissed and with costs.

I agree that this appeal should be dismissed. I have read the reasons of the Chief Justice and Dixon J. and I do not wish to add anything.

I agree substantially with the reasons of the Chief Justice and my brother Dixon for holding that the action in the district court was brought out of time.

The essence of the matter appears to me to be that all that s. 92 (3) of the Industrial Arbitration Act 1940-1948 N.S.W. gives the employee is a right to sue for any balance due in any district court or court of petty sessions in lieu of applying for an order under s. 92 (2). The application under sub-s. (2) is an application for an order to an industrial magistrate. Sub-section (2), par. 2, provides that an application under this sub-section made after the termination of the employment (the case with which we are concerned) shall be made not later than six months after the date of such termination. The action in the district court was commenced after this period, so that it was then too late to apply to an industrial magistrate for an order. Accordingly the employee no longer had the choice of alternatives, and the words "in lieu of" in sub-s. (3) indicate to my mind an intention that the right to sue in any district court or court of petty sessions is to be an alternative right, and therefore a right which can exist only so long as the employee has this choice.

As Street C.J. said in the Supreme Court [1] : "His right to make an application to an industrial magistrate had to be exercised within six months and after that period had expired it can no longer be properly said that he was entitled to take some other proceedings instead of making an application to an industrial magistrate. He had lost his right to make such application, and it seems to me that with that loss he also lost the right to bring an action in a District Court or Court of Petty Sessions."

1. (1950) 50 S.R. (N.S.W.), at p. 226; 67 W.N., at p. 139.

The words "in lieu of" were given this meaning in Stubbs v. Director of Public Prosecutions [2] and In re a Debtor [3] . In the last-mentioned case Darling J. said [4] : "in my opinion he (the learned County Court Judge) could not make a receiving order "in lieu of" an order that he could not make and which, in fact, could not exist".

1. (1890) 24 Q.B.D. 577. 2. (1905) 1 K.B. 374. 3. (1905) 1 K.B., at p. 377.

I would dismiss this appeal for the reasons given by the Chief Justice and Dixon J.

I agree that this appeal should be dismissed. I have had the advantage of reading the judgments of the Chief Justice and Dixon J., and there is nothing that I wish to add to what they have said.

I agree, and I wish to refer to one additional matter only. It was contended that the time limit of six months after the date of the termination of the employment, which the second paragraph of s. 92 (2) imposes in respect of proceedings under that sub-section, should be taken to be imposed for a reason which is relevant to such proceedings but irrelevant to proceedings under s. 92 (3). The fourth paragraph of sub-s. (2), which has no counterpart in sub-s. (3), enables a penalty to be imposed which might have been imposed in separate proceedings under s. 93 or s. 96. It was submitted that, having regard to the provisions of s. 56 of the Justices Act, 1902-1947, proceedings for a penalty under s. 93 or s. 96 must be instituted within six months after the relevant breach, and that the second paragraph of s. 92 (2) was intended to preclude the anomaly which would exist if a penalty could be imposed under that sub-section after the time for proceedings for a similar penalty under s. 93 or s. 96 had expired.

But even on the basis that s. 56 of the Justices Act applies to proceedings under s. 93 or s. 96, it cannot be inferred that the second paragraph of s. 92 (2) was enacted for the reason suggested. The period prescribed by that paragraph is, not six months after the commission of the breach, but six months after the termination of the employment; and that is a period by reference to which neither s. 56 of the Justices Act nor any other statutory provision limits the power to impose a penalty under s. 93 or s. 96. Some other reason therefore must account for the enactment of the second paragraph of s. 92 (2). The reason which suggests itself is that which has been recognized as explaining the time limit of six months which, until the amendment of s. 92 by the Act of 1943, applied to proceedings for the recovery of award wages, whether before an industrial magistrate and in a district court or court of petty sessions, namely that, while employees should have a reasonable time in which to obtain arrears, employers should be protected against an undue accumulation of stale claims as to which there might be great difficulty in preserving evidence (cf. Josephson v. Walker [1] ). The presence of the fourth paragraph in s. 92 (2) therefore affords no ground for denying the applicability of the time limit prescribed by the second paragraph to proceedings which an employee elects to take under s. 92 (3) in lieu of taking proceedings under s. 92 (2).