Rachel McNamara and Australian Services Union v J Gadsden Pty Ltd trading as Southcorp Packaging [1996] IRCA 33

DECISION NO: 33/96 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 4564 of 1995 B E T W E E N: Rachel McNAMARA and AUSTRALIAN SERVICES UNION Applicants A N D J GADSDEN PTY LTD trading as SOUTHCORP PACKAGING Respondent REASONS FOR RULING 13 February 1996 PARKINSON JR This is my ruling in relation to an application made by notice of motion on 12 December 1995. At that time application was made for the hearing date originally set for 13 December 1995 to be vacated. Leave to amend the s170EA application to include a claim for breach of contract had been granted on 21 November 1995 but no steps had been taken to make such amendment as at the date of hearing of this notice of motion. This application was made to enable the applicant to amend the proceeding and to vacate the hearing date, and to provide for certain directions in relation to the filing of a statement of claim and defence in the contract claim. Application was also made that the proceeding be referred to a Judge of the Court. The respondent consents to the orders sought in the notice of motion. As a result of the amendment, the claim includes an alleged breach of the employment contract by way of the failure to pay severance or redundancy payments alleged to be due pursuant to the contract of employment upon termination of employment. The amount claimed exceeds or is likely to exceed $10,000.00. It has been submitted that in relation to the present application the claim in the accrued jurisdiction of the court is beyond the power delegated to a Judicial Registrar because it exceeds or is likely to exceed $10,000.00. Consequently, the applicant seeks that the application pursuant to s170EA of the Act, together with the accrued claim, be referred to a Judge of the Court. For the purpose of determining whether I had power to hear and determine the application, including the amended claim, or alternatively, whether this being a matter within jurisdiction it was nevertheless one in which it was appropriate to refer to a Judge of the Court pursuant to s376(2), I asked the parties to address me in relation to the proper interpretation of s376(1)(b) and O74 r2, and in particular the words "whether because of this Act or any other law (including an unwritten law) of the Commonwealth or of a State or Territory" contained therein. It was submitted that whilst there may be some force in an interpretation which contemplates an accrued claim for wrongful dismissal at common law as falling within that class of proceeding contemplated by the bracketed words "(including an unwritten law)", this was not a claim of that type because it is not being alleged that the termination of employment itself was in breach of contract and thus unlawful, but rather that there was a failure to make certain payments pursuant to the contract and recovery of such entitlements is sought. It is appropriate to refer briefly to the statutory provisions in so far as they relate to Judicial Registrars. Judicial Registrars are appointed pursuant to s375 of the Industrial Relations Act 1988. Section 376 (1) provides: The Rules of Court may delegate to 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. O 74 r2 grants the delegation provided for in s376(1)(b) of the Act. It provides as follows: In relation to any proceeding in the Court, in so far as that proceeding relates to: (a) a claim for an amount of not more than $10,000 or such greater amount as the regulations may from time to time prescribe; 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 the Act or any other law (including an unwritten law) of the Commonwealth or of a State or Territory; all the powers of the Court and all the powers that may be delegated to a Registrar under section 466 of the Act are delegated to each Judicial Registrar. I have considered the authorities of the Court where the question of the powers of Judicial Registrars have been considered and whilst there is no decision which specifically considers the operation or meaning of the words discussed above, nevertheless there is authority to suggest that Judicial Registrars do not have jurisdiction where a claim in the accrued jurisdiction of the court exceeds $10,000.00. The source of the power of a Judicial Registrar is considered in a decision of Moore J in APESMA v Deniliquin Council (1995) 129 ALR 418. In the course of that decision, when considering the nature of the delegated power exercised by a Judicial Registrar, his Honour said at 420: It can be seen that the scheme of the Act is to create an office of judicial registrar with a number of the features of judicial office or variants of them and to permit a judicial registrar to deal with money claims for comparatively small amounts and claims of unlawful termination. Not only are the money claims that may be dealt with presently limited to $10,000 by the combined operation of s376(1)(a), (2)(a) and O 74 r 2, but any compensation that might be awarded in a claim of unlawful termination is, somewhat simplified, limited to six months' remuneration with a cap of $30,000 for employees not covered by an award: see s 170EE(3) and (4). His Honour then considered the nature of 'money claims' which might arise before a Judicial Registrar and, as can be seen from the following extract, claims which arise in the accrued jurisdiction fell within the class of claims characterised as money claims and thus subject to the jurisdiction limitation of $10,000.00. His Honour said at 421: The proceedings before a judicial registrar that are money claims may arise under s 179 as the recovery of money due under an award or may arise in the associated jurisdiction (see s 430), as a common law claim or cross-claim in an unlawful termination claim. Money claims may arise in other ways though it is not appropriate or necessary to catalogue them exhaustively. However, it can be assumed that such claims are to be determined by consideration of evidence concerning past events by reference to which the rights of the parties are established. In claims of unlawful termination the evidence will also concern past events, namely the circumstances of the termination, by reference to which any rights arising under Div 3 of Pt VIA of the Act will be determined. However, in these claims the remedies include an order for compensation (see s 170EE(2)) which may be made if the judicial registrar thinks reinstatement is impracticable. The nature of the delegated power was also considered by Beazley J in Brackenridge v Toyota Motor Corporation Aust Ltd (unreported, no. 466/95, 14/9/1995). In that decision her Honour considered the operation of S $10,000.00 monetary limit and concluded that a claim for breach of implied terms of a contract of employment which exceeded $10,000.00 was not within the jurisdiction of a Judicial Registrar. Whilst neither of the decisions referred to above expressly consider the meaning of the words "including an unwritten law" as they appear in both s376(1)(b) and O 74 r 2, it is apparent that claims for money amounts above $10,000.00, such amounts arising other than by way of the operation of s 170EE, are characterised as falling outside of the jurisdiction of a Judicial Registrar. The nature of the remedies specifically provided for, limited as they are in s170EE, would tend to support this approach. Further, I accept the submissions that in this case the contractual claim appears to fall within the class of claims that, whatever view was taken of the operation of s376 and O74 r2, would not be a proceeding relating to "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 the Act or any other law (including an unwritten law) of the Commonwealth or of a State or Territory", but rather is a claim for recovery of money arising from the contract of employment. For all of the above reasons I have decided that the matter is one which is to be referred to a hearing before a Judge, and arrangements will be made by the listing coordinator to place the matter in the Judges Directions list on 4 March 1996. The order of the court will be: 1. That the matter be placed in the Judges' Directions List fixed for 4 March 1996. I certify that this and the preceding five (5) pages are a true copy of the reasons for ruling of Judicial Registrar Parkinson. Associate: Dated: 13 February 1996