CATCHWORDS INDUSTRIAL LAW - JUDICIAL REGISTRAR'S POWER - UNLAWFUL TERMINATION CLAIM - whether a judicial registrar has power to hear an application which seeks relief under s 170EA of the Industrial Relations Act 1988 (the Act) as well as damages in the court's accrued jurisdiction in a sum in excess of $10,000.00 Industrial Relations Act 1988 (Cth): s 170EA, s 170DB, s 170DC, s 376, s 377, s 378 and s 472 Industrial Relations Court Rules: Order 74 rule 3 Federal Court of Australia Act 1976 (Cth) s38 Industrial Relations Reform Act 1993 (Cth) Landsal Pty Ltd (in liq) and Ors v REI Building Society (1993) 41 FCR 421 Addis v Gramophone Co Ltd [1909] AC 485 Grout v Gunnedah Shire Council (1994) 125 ALR 355. Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 LEANNE BRACKENRIDGE v TOYOTA MOTOR CORPORATION AUSTRALIA LTD No. NI 1218 of 1995 Beazley J 14 September 1995 Sydney IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) ) No. NI 1218 of 1995 NEW SOUTH WALES DISTRICT REGISTRY ) ) BETWEEN: LEANNE BRACKENRIDGE Applicant AND: TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED Respondent CORAM: BEAZLEY J PLACE: SYDNEY DATE: 14 September 1995 REASONS FOR JUDGMENT BEAZLEY J: The question which arose on this application, which I heard and determined on 16 June 1995, was whether a judicial registrar has power to hear an application which, in addition to claiming relief under s 170EA of the Industrial Relations Act 1988 (Cth) (the Act), claims damages in the court's accrued jurisdiction in a sum in excess of $10,000.00. An initial question also arose as to the nature of the application before the court. On the 2 June 1995, a judicial registrar had refused an application that the matter be heard by a judge and directed that the hearing proceed before a judicial registrar. By notice of motion filed 5 June 1995, the applicant sought a review of the judicial registrar's decision that the matter be heard by a judicial registrar. The applicant submitted that the application was properly brought pursuant to s 377 of the Act. That section provides: "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." It was submitted by the respondent that the judicial registrar, in hearing the notice of motion, was not exercising delegated power under s 376. Rather, he was making a determination under s 378(1). Accordingly, his decision was not open to review under s 377. It was submitted that the present application therefore had to be brought under s 378(2). Relevantly, ss 376 (1) and (2) provide: "(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;... Order 74 provides: "2. In relation to any proceeding in the Court, in so far as that proceedig relates to: (a) a claim for an amount of not more than $10,000 or such greater amount as the regualtion may from time to time prescribe... all the powers of the Court ... are delegated to each Judicial Registrar." No other amount has been prescribed by the regulations. Subsections 378(1) and (2) provide: "(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." If the respondent's submissions are correct and the judicial registrar has no delegated power to hear this matter, s 378(2) does not apply, as that section is only applicable where a judicial registrar would otherwise have power to hear a matter. Some other source of power would thus have to be found for the purposes of this application. Section 472 makes provision for the practice and procedure of the court. Subsection (1) provides: "Subject to any provision made by or under this or any other Act with respect to practice and procedure, the practice and procedure of the Court shall be in accordance with the Rules of Court made under this Act" This section is the court's counterpart of s 38 of the Federal Court of Australia Act 1976 (Cth). In Landsal Pty Ltd (in liq) and Ors v REI Building Society (1993) 41 FCR 421, the Full Court of the Federal Court stated that s 38 did not deny to the Federal Court all the powers of a superior court to control its own processes and proceedings to ensure the proper administration of justice: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612; Hamilton v Oades (1989) 166 CLR 486 at 516. The Full Court further held that that power extends to matters that are regulated by a provision of a statute or rules of court, so long as it can exercise the power without contravening the statute or rule. The court stated that it was unclear whether these powers were properly categorised as implied or inherent powers in the sense referred to by Menzies J in R v Forbes; ex parte Bevan (1972) 127 CLR 1 at 7. However, that question did not detain the court. The Industrial Relations Court of Australia is also the creation of statute: see the Industrial Relations Reform Act (Cth) 1993. In my opinion it has the power, as does the Federal Court, to control its own processes and proceedings: see also Canceri v Taylor (1994) 123 ALR 667 per Moore J at 669. Accordingly I am of the opinion that this application is appropriately to be considered by the court in the exercise of those powers. It may be, of course, that if I determine that a judicial registrar has power to hear the matter, I could determine the application under s 378(2). However, I do not consider that those statutory contortions are necessary. Any order which I made in the exercise of the courts implied or inherent jurisdiction would not be inconsistent with s 378(2). I should state that counsel for the applicant, whilst not conceding that the notice of motion was bad in form, did not contest the exercise by the court of its power under either s 378(2) or its general power to control its own processes. Question for determination The question for determination therefore was whether the applicant's claim falls within the delegated jurisdiction of a judicial registrar. Nature of substantive application The applicant had been employed by the respondent in the position of chef supervisor. After an incident at work in January this year, which involved a physical altercation with another worker, her position was terminated. However, she was offered and accepted another position with the respondent which did not involve supervisory duties. The applicant has claimed that the termination of her unemployment as a chef supervisor was in contravention of ss 170DB and 170DC of the Act. She has also alleged that the respondent breached certain implied terms of her employment, including that it would give her reasonable notice of termination and that it would not terminate the contract of employment in such a manner as to cause mental distress. In support of her claim, she has filed medical evidence as well as an affidavit by her solicitor, that the advice of counsel in the matter is that the applicant's claim is worth more than $10,000.00. Whether substantive application falls within the delegated jurisdiction Counsel for the applicant submitted that the provisions of Order 74 refer to a "claim", and not to the result of the action. He submitted, therefore, that an applicant did not have to positively satisfy a court that an award in excess of $10,000 would be made. It was sufficient, for a matter not to fall within the judicial registrar's delegated jurisdiction, that the claim was for an amount in excess of $10,000 and it was possible that an award in excess of $10,000 might be made in the matter. The solicitor for the respondent disputed that the applicant's claim was in excess of $10,000. In particular, he submitted that, in default of directions made by the judicial registrar the applicant had failed to provide particulars of damages claimed in the accrued jurisdiction; that there was no evidence that the applicant has suffered any damages - she was still employed by the respondent at her usual salary; and that she had not demonstrated that she had an arguable case, as at most, the medical evidence only supported a claim for stress, which did not sound in damages in a claim for breach of a contract of employment: see generally Addis v Gramophone Co Ltd [1909] AC 485; Grout v Gunnedah Shire Council (1994) 125 ALR 355. Counsel for the applicant conceded that particulars of damage had not been filed and that the applicant was still employed. He stated however, that because of the change in the nature of the applicant's employment, she would not receive certain benefits which she would have received in her former postion. However, there was no evidence at all of that matter nor, as I have said had it been particularised. In any event, such a claim would fall within the remedies available under s 170 EE if it was determined that the applicant's termination of employment was in contravention of the Act and in respect of which the judicial registrar does have delegated power. That leaves the claim for damages for breach of the implied terms of the contract of employment. The medical evidence filed in the case was that of Dr Godsall, psychiatrist. Dr Godsall stated that he did not consider that the applicant was suffering from a psychiatric condition. He accepted however that she was distressed and suffering from stress. However, he also stated that the circumstances arising from her dismissal could threaten a "Situational Stress Reaction". He considered that certain of the symptoms she was exhibiting were consistent with the early stages of this. In the present case, the medical evidence filed on behalf of the applicant is equivocal and there is merit in the respondent's argument that at its highest, it is evidence that the applicant is experiencing distress. However, as I have said, the psychiatric report is equivocal. On one reading, it could support a claim that the applicant is suffering from a more substantive psychological illness arising from the alleged breach of contract than mere distress. In any event, I consider that the question of whether Addis v Gramophone Co Ltd continues to apply is not finally resolved in this court. In these circumstances, I consider that the applicant has an arguable case for damages for distress, or mental anguish, as well as for a more severe psychological illness arising out of the alleged breaches of contract. That leaves the question whether the claim is for an amount greater than $10,000.00. In my opinion, on an application of this type, the court is entitled, in a prima facie way, to rely upon the evidence filed in support of the claim, as well as upon the assessment of a solicitor under oath that the claim is for damages in excess of $10,000.00. The court is also entitled to refuse an order that the matter be heard by a judge, if it considered that the claim is "colourable in the sense [it was] made for the improper purpose of fabricating jurisdiction": see Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. Having regard to the matters to which I have referred, I do not consider this claim brought in the accrued jurisdiction is colourable in the sense described in Burgundy Royale. Accordingly, I consider that the judicial registrar has no jurisdiction to hear the matter. I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment of the Honourable Justice Beazley. Associate: Dated: 14 September 1995 APPEARANCES Counsel for the Applicant: Mr Moses Solicitors for the Applicant: Messrs Watson & Watson Counsel for the Respondent: Mr Barton Solicitors for the Respondent: Messrs Freehill Hollingdale & Page Date of hearing: 16 June 1995