Spotless Services Australia Ltd v The Honourable Senior Deputy President Jeanette Marsh

THE COURT 1 This application for prerogative relief was remitted to this Court by the High Court of Australia pursuant to s 44 of the Judiciary Act 1903 (Cth). 2 The applicant, Spotless Services Australia Ltd ("Spotless"), challenges a decision of a Full Bench of the Australian Industrial Relations Commission ("the Full Bench") made on 7 April 2003. Spotless also complains of the alleged failure of Deputy President McCarthy to deal with a jurisdictional issue in the course of proceedings before him regarding the termination of the employment of the second respondents, Ms Wookey and Mr Topham ("the employees"). 3 The issue for determination in the proceeding is whether the Australian Industrial Relations Commission ("the Commission") is obliged to hear a motion for the dismissal of a proceeding concerning termination of employment notwithstanding that no extant issue in respect of that application is before the Commission.

Factual Background 4 On 21 February 2002, the employees filed applications in the Commission for relief in respect of the termination of their employment by Spotless. In their applications the employees claimed that their terminations took effect on 14 February 2002. 5 In appearance forms dated 1 and 7 March 2002 in the Wookey and Topham applications respectively, Spotless' representative ticked the box on each form alongside the following notation: "I do not object to the Commission extending the time for lodgement." 6 As at 7 March 2002, the employees did not consider that they required an extension of time to bring their applications. Under s 170CE(7) of the Workplace Relations Act 1996 (Cth) ("the Act") the applications were required to be lodged with the Commission within 21 days after the terminations took effect. If the terminations took effect on 14 February, as the employees alleged in their originating process, no extension was necessary. 7 As the employees asserted that their applications were within time and Spotless did not object to an extension, if one were required in each matter, the issue did not arise for the Commission's consideration unless and until Spotless exercised its rights under s 170CEA of the Act to move for dismissal of the applications on jurisdictional grounds. 8 On 7 June 2002 a conciliation conference in each matter was held before Deputy President McCarthy. At that conference Spotless foreshadowed that it may exercise its rights under s 170CEA if the matters did not settle. 9 On 9 July 2002 those aspects of the applications which asserted that the terminations were harsh, unjust or unreasonable were settled. That left in dispute the contentions that the terminations involved contravention of ss 170CK, 170CL and 170CM. 10 On 26 September 2002, Deputy President McCarthy certified, pursuant to s 170CF(2), that all reasonable attempts to settle each matter by conciliation have been made and are not likely to be successful in respect of the alleged contraventions of ss 170CK, 170CL and 170CM. 11 As the certificates referred to conciliation as being unsuccessful or likely to be unsuccessful in respect of ss 170CK, 170CL and 170CM, the employees were obliged to elect within seven days to commence proceedings in the Court, or in respect of s 170CM a court of competent jurisdiction, or lose their right to proceed further: see s 170CFA(7). When it granted the certificates the Commission's role in each matter came to an end. Although it had foreshadowed action, Spotless had not, by 26 September 2002, moved for dismissal of the applications on jurisdictional grounds, that is, on the ground that they were out of time. 12 The employees, on 1 October 2002, filed notices of election to bring proceedings in the Court for contravention of s 170CM, alleging insufficient notice of termination in each matter. Thereafter, on 15 October 2002, the employees commenced proceedings in this Court for orders under s 170CR in respect of the alleged contraventions of s 170CM. 13 On 4 November 2002, Spotless filed motions in the Commission under s 170CEA(2) seeking dismissal of the applications on jurisdictional grounds. The motions were filed despite the fact that there was no longer any extant proceeding before the Commission, the employees having elected to proceed in the Court and having lodged applications based on these elections. 14 On 19 November 2002, Spotless wrote to the Commission, seeking a hearing of its s 170CEA(2) motions. In response, on 22 November 2002, without notice to the employees and without any extant proceeding in the Commission's jurisdiction before him, Deputy President McCarthy purported to revoke the certificates, which he had issued on 26 September 2002. 15 On 28 November 2002, Deputy President McCarthy purported to revoke his order of 22 November 2002. 16 Spotless applied to the Full Bench for leave to appeal from Deputy President McCarthy's alleged failure to hear its motions concerning jurisdiction and from his decision on 28 November 2002 to revoke his order of 22 November 2002. 17 In its decision dated 7 April 2003, the Full Bench set aside the Deputy President's orders of 22 and 28 November 2002, thereby leaving in place the issuing of the certificates on 26 September 2002. 18 The Full Bench considered that the Deputy President was "functus officio" when he issued his orders on 22 and 28 November 2002.