FEDERAL COURT OF AUSTRALIA Miller v University of New South Wales [2001] FCA 182 INDUSTRIAL LAW - certified agreement – application for declarations under s 413A of the Workplace Relations Act 1996 (Cth) – application for imposition of penalty under s178 of the Workplace Relations Act – whether appellant was denied natural justice with respect to a claim under s 179 of the Act – where appellant's standing to seek an order for payment under s 179 was not before the Court. Workplace Relations Act 1996 (Cth) DAVID MILLER V UNIVERSITY OF NEW SOUTH WALES NO. N 907 OF 2000 JUDGES: BEAUMONT ACJ, RYAN & MADGWICK JJ DATE: 4 MAY 2001 PLACE; SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 907 OF 2000 BETWEEN: DAVID MILLER APPELLANT AND: UNIVERSITY OF NEW SOUTH WALES RESPONDENT JUDGES: BEAUMONT ACJ, RYAN & MADGWICK JJ DATE OF ORDER: 4 MAY 2001 WHERE MADE: SYDNEY THE COURT ORDERS: 1. Leave to appeal granted. 2. Appeal allowed. 3. Order 1 of the orders made on 7 November 2000 set aside. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 907 OF 2000 BETWEEN: DAVID MILLER APPELLANT AND: UNIVERSITY OF NEW SOUTH WALES RESPONDENT JUDGES: BEAUMONT ACJ, RYAN & MADGWICK JJ DATE: 4 MAY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 On 22 August 2000, the appellant commenced proceedings No. 907 of 2000 by Application and Statement of Claim. He sought relief under the Workplace Relations Act 1996 pursuant to alleged breaches by the respondent of the UNSW (Academic Staff) Enterprise Agreement 1997-8. 2 The appellant had earlier, in May 2000, commenced proceedings in the High Court seeking writs of mandamus and certiorari against the Full Bench of the Australian Industrial Relations Commission ("the Commission"). Those proceedings arose from a decision of the Full Bench of the Commission refusing an application by the appellant for leave to appeal from a decision of a Senior Deputy President of the Commission dismissing an application by the appellant for relief with respect to the termination of his employment by the respondent. On 12 July 2000, Gaudron J remitted these proceedings to this Court. The application for prerogative relief (N 801 of 2000) was heard by this Full Court at the same time as the application for leave to appeal in this matter. 3 The background to this matter is as follows. A Judge of the Court heard a motion on notice filed by the respondent in proceedings (N 907 of 2000) moving the Court for an order that they be stayed or stood out of the list until the proceedings in matter N 801 of 2000 had been concluded; in the alternative, the respondent moved the Court for an order that proceedings N 907 of 2000 be set aside. The respondent challenged, amongst other things, the standing of the appellant to seek some of the relief set out in the present application, viz: the making of declarations under s 413A, and the imposition of a penalty under s 178 of the Workplace Relations Act 1996 ("the Act"), on the basis that at the time of instituting the proceedings he was not "an employee whose employment is subject to the Agreement" for the purposes of s 413A(1)(c) and s 178(5A)(b) of the Act. 4 On 7 November 2000, the primary Judge made several orders on the respondent's motion. Order 1 is the relevant one and is as follows: "The claim for relief made by the Applicant pursuant to s179 of the Workplace Relations Act 1996 (Cth) be dismissed." 5 The reasons for Order 1 are stated in pars (29) – (31) of the Judge's judgment; that is to say, the Judge held that the appellant's claim under s 179 of the Act should be dismissed under O 20 r 2 as disclosing no reasonable cause of action. 6 The appellant now seeks leave to appeal from Order 1, claiming that he had been denied natural justice with respect to his claim under s179 of the Act and that, on this ground alone, the order should be set aside. The appellant contends that the question whether he was entitled to seek to recover an amount under s 179 of the Act, and, in particular whether such a claim disclosed no reasonable cause of action, was not canvassed by the parties or the Court at the hearing of the motion nor in written submissions. 7 The respondent now, quite fairly, accepts that the appellant was inadvertently denied natural justice as claimed. It agrees that the appellant's standing to seek an order for payment under s 179 of the Act was not the subject of challenge by it. Accordingly, the respondent does not oppose the grant of leave to appeal and Order 1 being set aside. 8 In the circumstances, the Court makes the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Order 1 of the orders made on 7 November 2000 set aside. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 4 May 2001 Counsel for the Applicant: Mr W R Haylen QC, Ms C Howell Solicitor for the Applicant: R.L. Whyburn & Associates Counsel for the Respondent: Mr R M Goot SC, Mr S Prince Solicitor for the Respondent: Minter Ellison Date of Hearing: 28 February 2001 Date of Judgment: 4 May 2001