Matthew Hitchcock v Warner Bros Movie World [1995] IRCA 246

CATCHWORDS INDUSTRIAL LAW - Review of exercise of power by Judicial Registrar - scope of review - nature of powers that might be reviewed Industrial Relations Act 1988, s 377, "exercise ... of power delegated under s 376". Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421 Foxcroft v The Ink Group Pty Ltd (1994) 57 IR 65 APESMA v Deniliquin Council, unreported, Moore J, 10 March 1995 Harris v Caladine (1991) 172 CLR 84 Brandy v Human Rights and Equal Opportunity Commission (1995) 127 ALR 1 No. QI 190 of 1994 MATTHEW HITCHCOCK v WARNER BROS. MOVIE WORLD MOORE J CANBERRA (Heard in Brisbane) 19 JUNE 1995

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. QI 190 of 1994 ) QUEENSLAND DISTRICT REGISTRY ) BETWEEN: MATTHEW HITCHCOCK Applicant AND: WARNER BROS. MOVIE WORLD Respondent JUDGE: Moore J PLACE: Canberra (Heard in Brisbane) DATE: 19 June 1995 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The application for review be dismissed as incompetent. 2. Costs reserved. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. QI 190 of 1994 ) QUEENSLAND DISTRICT REGISTRY ) BETWEEN: MATTHEW HITCHCOCK Applicant AND: WARNER BROS. MOVIE WORLD Respondent JUDGE: Moore J PLACE: Canberra (Heard in Brisbane) DATE: 19 June 1995 REASONS FOR JUDGMENT On 12 September 1994 an application was made under s170EA of the Industrial Relations Act 1988 ("the Act") by Mr Matthew Hitchcock claiming the termination of his employment with Warner Bros Movie World ("Movieworld") was in contravention of Div3 of PtVIA of the Act. The facts that gave rise to the application may be briefly stated. Mr Hitchcock was first employed by Movieworld in early December 1993 to perform in a band playing at the amusement park it operates on the Gold Coast. His letter of appointment of 26 November 1993 contained the following: "It is my pleasure to confirm your engagement as a Casual Atmosphere Performer (Instrumentalist) commencing Monday 6 December 1993, at times and dates to be advised and as per the enclosed proposed rehearsal schedule. Performances are scheduled to commence from Monday 20th December 1993 for five weeks, concluding on Sunday 30th January 1994. Further engagements may be offered thereafter on an as called basis, subject to your availability and satisfactory performance during the initial period." Thereafter the letter sets out in detail his rates of pay, hours of work and other conditions. It notes his employment was as a casual under the Entertainers Award - State, being an award of the Queensland Industrial Relations Commission. It is common ground that this is so. The letter goes on to say: "It is fully understood that your duties are as per the attached Position Description and no other guarantees, promises or agreements have been discussed." He worked until 30 January 1994. This period, in substance, was the school holidays. He again worked 19 March to 17 April 1994 and 11 June to 17 July 1994 which were again the school holiday periods. On 24 August 1994 Mr Hitchcock received a letter sent on behalf of Movieworld indicating "the time had come for us to part company with you in the Warner Bros Movie World Band". It was, in effect, indicating that he would not be working the next school holidays. The letter asked him to return certain items. It said: "The time has come for us to part company with you in the Warner Bros. Movie World Band. I will not go into the many reasons for our decision as they are too numerous to mention. In a nut-shell, your performance levels are below standard & your actions of the past season proved a disruptive and divisive influence on the team." and later: "You can send the items to Movie World marked to Scott Mc Duff's attention. They will be checked off with the people in supply." Mr Hitchcock said in evidence that at the time he received the letter he had an expectation that he would work in the September school holiday period. The application under s170EA first came before a Judicial Registrar on 25 October 1994. The Judicial Registrar acceded, in due course, to a request made by both parties that he consider and determine a discrete issue concerning his jurisdiction. It is plain he did so reluctantly. The circumstances in which a court should decide such an issue in this way are limited: see Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 at 448-449. A hearing took place on 16 December 1994 when affidavits were read, one witness was cross examined and submissions made. The Judicial Registrar published reasons for judgment on 31 January 1995 but made no orders. The issue he identified and dealt with in those reasons was the operation of reg30B on Mr Hitchcock's application. The Judicial Registrar decided that Mr Hitchcock, who was a casual employee, was not employed in employment to which reg30B applied. Thus he was not in a class to which Div3 of PtVIA had no application because of the exclusionary effect of reg30B(1). The Judicial Registrar did not, in terms, deal with whether there had been a "termination of (Mr Hitchcock's) employment" as that expression appears in s170EA. The starting point in determining jurisdiction to deal with Mr Hitchcock's application is not reg30B which the Judicial Registrar considered in detail. It identifies employees excluded from the operation of Div3 of PtVIA: see s170CC. The regulations cannot enlarge the operation of the Act: see Minister for Foreign Affairs & Trade v Mango (1992) 37 FCR 298 at 310 per Gummow J and 327 per French J. The power arising under s170CC to make a regulation is limited to identifying specified employees upon which the provisions of Div3 would otherwise operate. The provisions of Div3 operate only upon employment which has been terminated at the initiative of the employer. Thus the question that must initially be considered in determining jurisdiction is whether there was "a termination of ... employment" on 26 August 1994: see s170EA. Counsel had differing recollections as to whether this issue was raised with the Judicial Registrar. On 21 February 1995 a notice of motion was filed by Movieworld seeking an order "that the Judgment of Judicial Registrar Boulton was wrong in law". At the hearing of this notice of motion I raised with the parties what it was I was being asked to determine. I did so because it was not immediately apparent to me what powers the Court was being called upon to exercise. It was submitted that I was being asked to review the refusal of the Judicial Registrar to dismiss the application for want of jurisdiction. A review is undertaken under s377 which forms part of a scheme dealing with the powers of Judicial Registrars found in ss376, 377 and 378. They provide: "376(1) The Rules of Court may delegate to the Judicial Registrars, either generally or as otherwise provided in the Rules, all or any of the Court's powers in relation to proceedings in the Court, in so far as the proceedings relate to: (a) a claim for an amount of not more than the amount specified in the Rules; or (b) a claim that the termination of an employee's employment was unlawful, or that the proposed termination of an employee's employment would be unlawful, whether because of this Act or any other law (including an unwritten law) of the Commonwealth or of a State or Territory. (2) For the purposes of paragraph (1)(a), the Rules may specify an amount of not more than: (a) $10,000; or (b) such greater amount as the regulations prescribe. (3) Without limiting subsection (1), Rules of Court made because of that subsection: (a) may delegate to the Judicial Registrars powers that could be delegated to the Registrar of the Court; and (b) may so delegate powers by reference to powers that have been delegated to the Registrar of the Court under section 466. (4) A power delegated to the Judicial Registrars is, when exercised by a Judicial Registrar, taken to have been exercised by the Court or a Judge, as the case requires. (5) The delegation of a power to the Judicial Registrar does not prevent the exercise of the power by the Court or a Judge. (6) The provisions of this Act, the regulations and the Rules of Court, and of other laws of the Commonwealth, that relate to the exercise of a power by the Court apply, in relation to an exercise of the power by a Judicial Registrar under a delegation under subsection (1), as if a reference to the Court or a Judge, or to a court exercising jurisdiction under this Act, were a reference to a Judicial Registrar. (7) As well as the powers delegated under subsection (1), the Judicial Registrars have such other powers as are conferred on them by this Act, the regulations or the Rules of Court. 377(1) A party to proceedings may apply to the Court to review a Judicial Registrar's exercise in the proceedings of a power delegated under section 376. An application must be made within the period prescribed by the Rules of Court or such further period as is allowed in accordance with the Rules. (2) On an application under subsection (1) or of its own motion, the Court may review a Judicial Registrar's exercise of a power so delegated. The Court may make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised. (3) On the application of a party or of its own motion, the Court may refer to a Full Court of the Court an application under subsection (1). 378(1) If: (a) an application for the exercise of a power delegated under section 376 is to be, or is being, heard by a Judicial Registrar; and (b) the Judicial Registrar considers that it is not appropriate for him or her to determine the application; he or she must not hear, or continue to hear, the application, and must instead make appropriate arrangements for the Court to hear the application. (2) If a Judicial Registrar proposes to exercise in a particular case a power delegated under section 376 but has not begun to exercise the power in that case, a Judge may order that the power be exercised in that case by a Judge. (3) An order under subsection (2) may only be made on application by a person who would be a party to the proceedings before the Judicial Registrar in relation to the proposed exercise of the power. (4) If an application is made under subsection (3), the Judicial Registrar must not exercise the power in that case until the application has been determined." It is to be noted that s377 concerns the review of the "exercise in the proceedings of a power delegated under s376". In the present case the substantive power that the Judicial Registrar was exercising was the power to hear and determine by order of the Court the application under s170EA. However the question that presently arises is whether the Judicial Registrar has exercised a power in relation to the application under s170EA that would enliven the power of the Court to review the exercise of that power. Plainly, had the Registrar determined he had no jurisdiction and dismissed the application under s170EA, then the Judicial Registrar would have completed the task he was called upon to perform and had exercised the power to hear and determine the application. Counsel for Mr Hitchcock drew my attention to O29 and submitted that what the Judicial Registrar had done was in conformity with that order. Order 29 provides that the Court may determine a question separately from any other question. "Question" is defined in O29 as including "any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement or parties or otherwise". However, no order was made in accordance with O29r2 to decide a separate question and it is not apparent from his decision that the Registrar purported to deal with an issue in conformity with O29. Order 29 involves, relevantly, the exercise of two powers. The first is to decide to try a question separately and secondly to dispose of the matter in accordance with O29r4 if the decision on the question has that effect. In the present case what the Judicial Registrar did was analogous to trying the matter in two phases: see Landsal Pty Ltd v REI Building Society (1993) 41 FCR 421. It is to be borne in mind that all the Judicial Registrar addressed in his reasons was the issue he describes in the third paragraph of them: "The matter for my determination at this stage is the applicability or otherwise of regulation 30B of the Industrial Relations Regulations to the applicant's employment. Ordinarily, in this Court, such a question is not determined in the absence of a determination of the merits of an application. However, the parties urged upon me that the point could be disposed of in a half-day hearing, with formal reading of affidavits and some short cross-examination. In the circumstances, I acceded to their entreaty." This is repeated in the penultimate paragraph of the decision: "The upshot is that I declare that the applicant is not excluded by regulation 30B from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act. I emphasise that this is the only point to which I have given consideration, it being the basis for my setting down, on 1 December 1994, the matter for hearing." I was told by counsel for Movieworld that the Judicial Registrar was addressed on the question of whether there had been a "termination of employment" as that expression appears in the Convention forming Sch10 to the Act, though the Registrar expresses no conclusion about that matter, or the related matter of its meaning in s170EA: see s170CB, in his reasons and the recollection of counsel for Mr Hitchcock appeared to be that the Registrar was not addressed on that matter. I was referred to Foxcroft v The Ink Group Pty Ltd (1994) 57 IR at 66 in which the Chief Justice expressed the view that: "It will be noted that the power of review is not limited to orders finally disposing of a claim. It extends to interlocutory orders. However, special considerations apply to challenges to interlocutory orders concerning matters of practice and procedure. This has been stated by appellate courts on numerous occasions." However notwithstanding the width of the language in s377 when read with s376, I do not consider that Parliament intended that s377 was to provide a mechanism for the review of the exercise of any power by a Judicial Registrar in the course of hearing and determining an application concerning a matter referred to in s376(1)(a) and (b). Section 377 owes its existence, at least in substantial part, to the constitutional limits on a Judicial Registrar exercising delegated judicial power to finally determine a justiciable controversy: see APESMA v Deniliquin Council, unreported, Moore J, 10 March 1995. If s377 creates the right to have reviewed the final determination by a hearing de novo, then there is no obvious legislative purpose served by permitting the review of all powers exercised in the process of making that final determination if the final determination, and any interlocutory decisions leading to it, can be exercised again by a Judge. Moreover, and notwithstanding observations of the Chief Justice in Foxcroft, if the review is a hearing de novo, then the power that is being exercised upon review is exercised afresh. It is not a question of the Judge undertaking the review to ask whether the power exercised by the Registrar was exercised other than in accord with principle. The Judge must again exercise the power and if it is a discretionary one, exercise afresh the discretion: see Harris v Caladine (1991) 172 CLR 84 at 125 per Dawson J. It may be accepted that s377 speaks of the review of "a power delegated under s376" and that s376 refers to the delegation of "all or any of the Court's powers in relation to proceedings". Order 74 delegates to Judicial Registrars "all powers of the Court" in relation to proceedings which correspond to the matters in s376(1)(a) and (b). Money claims are limited to $10,000: see s376(2)(a) and O74r2(a). The language of s377 would suggest that a review may be sought of the exercise of any power so delegated. If read literally s377 would enable applications to be made for the review of the exercise of a power to admit or refuse to admit particular evidence, the exercise of a power to give directions for the preparation of a matter for trial, the exercise of the power to grant access to documents produced on subpoena either conditionally or unconditionally and the exercise of a power to adjourn the proceedings for even the shortest of periods. Section 378 provides some indication that the reference to "a power delegated under s376" in s377 should not be read as widely as the terms of s377 might at first suggest. It is to be remembered that s376 to s378 are part of a scheme dealing with the delegation of powers by the Court and the control of the exercise of that delegated power by the Court. Section 378 also refers to "exercise of a power delegated under s376". However, it speaks of "an application for" the exercise of such a power and the "hear(ing of) the application". Many powers that might be delegated under s376 would not be exercised upon application which would require a hearing and I have already referred to some in the illustrations I gave earlier. This would suggest that the powers to which at least s378 relates, are not all powers delegated under s376 and that s378 relates only to all or some of the powers that would be exercised upon application. Sections 377 and 378 are intended to provide different, though complementary, means by which a Judge may exercise the relevant delegated power. The former after its exercise and the latter before its exercise. The scope of s377 is intended to be the same as s378. Both relate to powers exercised upon application. If, therefore, the expression "a power delegated under s376" is not to be read literally as a reference to any power that is delegated, what are the characteristics of a power that is amenable to review by a Judge under s377 or may be exercised by a Judge under s378. The answer lies, in my opinion, in the legislative purpose of s376 to s378. I have already referred to constitutional limitations concerning Parliament's capacity to legislate so as to permit the delegation of judicial power by Judges appointed under ChIII of the Constitution. They were discussed by the High Court in Harris v Caladine. The principal reason for s377 is to enable the valid delegation of judicial power under s376. It is clear that the majority comprising Mason CJ and Dean, Dawson, Gaudron and McHugh JJ viewed legislation enabling the delegation of judicial power to individual officers forming part of a court as valid if the Judges delegating the power are able to exercise effective control and are able to supervise the exercise of the power by the delegates. As I discussed in APESMA, supra, one can discern from the judgments of the majority in Harris v Caladine that it is necessary that the review of an exercise of a power be a hearing de novo. McHugh J suggests at 164 that the review need be of the power to give a binding and authoritative decision in the action. That is, the final determination. Similar, though less conclusive, statements to the same effect were made by Mason CJ and Deane J at 95 when referring to reviews of "decisions", and Dawson J at 126. The resolution of whether the review concerns only the final determination of a matter will involve a consideration of the meaning of the word "may" in the expression "the Court may review" in the second sentence of s377(2). If it is intended to invest the Judge with a discretion to undertake the review either upon application or of his or her own motion, it may be thought that Parliament intended the class of powers that are amenable to review to be larger than they otherwise might be if the Judge does not have a discretion. However in relation to the exercise by a Judicial Registrar of a power to finally determine an application concerning a matter of the type referred to in s376(1)(a) and (b) there can be no doubt, having regard to Harris v Caladine, that a Judge is obliged to hear the matter which rather suggests the expression "may review" is not intended, in context, to create a discretion: see Brandy v Human Rights and Equal Opportunity Commission (1995) 127 ALR 1 at 19. It is unnecessary in this judgment to endeavour to determine exhaustively what are the powers amenable to review under s377 and whether "may" in s377(2) invests a Judge with a discretion to hear a review. It is sufficient to say that, in my opinion, the constitutional requirement is met if the Judge has power to review by way of hearing de novo either upon application or of its own motion the exercise of the power finally disposing of the matter being dealt with by the Judicial Registrar and perhaps, in addition, the exercise of powers which, to adopt the language of Mason CJ and Deane J at 94 constitute "the more important aspects of contested matters". Sections 377 and 378 should be construed so as to give effect to that requirement and as not having any wider operation. This construction of s377 is reinforced by the combined effect of s376(6) and s420 which is to create a right of appeal from an interlocutory order of a Judicial Registrar though only with leave. This is the means by which Parliament has provided a further avenue of supervision of the exercise by a Judicial Registrar of a delegated power to make an interlocutory order in the more general exercise of power to hear and determine a matter. I return to the question of whether the Judicial Registrar has exercised a power to which s377 applies in these proceedings. He has expressed a view about one matter that bears upon his jurisdiction. He has not dealt exhaustively with whether jurisdiction exists and the operation of reg30B is only relevant if there has been "a termination of employment" as that expression appears in s170EA. While the Registrar uses the word "declare" in the penultimate paragraph of his decision which I set out earlier, it does not appear, in context, to be intended to have any particular legal significance and, in particular, to be an order under s417. Had the Judicial Registrar, consistent with the principles discussed in Blurton, supra, decided to try the separate issue of jurisdiction in exercise of the powers under O29, a determination of that matter may have been amenable to review under s377 though that is a matter I need not now finally decide. However that is not what the Judicial Registrar did. I am not satisfied that the Registrar has exercised a power amenable to review. The application for review is incompetent. While I accept that this conclusion causes inconvenience and may have resulted in additional expense, the alternative was to hear the matter and thereby condone a process that more generally would add yet another avenue for litigation in a field that should be, having regard to its subject matter, kept as simple as the terms of the legislation would permit. I reserve on the question of costs of the application for review.