Fenech v Perfect Health Medical Centres Pty Ltd [1996] IRCA 199

DECISION NO: 199/96 CATCHWORDS INDUSTRIAL LAW - notice of motion seeking injunctive relief in the accrued jurisdiction of the Court - whether there is a serious issue to be tried - whether claim arises out of the same substratum of facts - COSTS Industrial Relations Act 1988 ss 170ED, 170EHA John Sutherland v Fabglass Bathroom Products Proprietary Limited, VI 2059 of 1995, Industrial Relations Court of Australia, Marshall J, 26 July 1995, as yet unreported No. VI 1491 of 1996 ROSLYN FENECH v PERFECT HEALTH MEDICAL CENTRES PTY LTD Judge: Marshall J Place: Melbourne Date: 2 May 1996

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VI 1491 of 1996 BETWEEN: ROSLYN FENECH Applicant AND: PERFECT HEALTH MEDICAL CENTRES PTY LTD Respondent JUDGE: Marshall J PLACE: Melbourne DATE: 2 May 1996 ORDER The Court orders: 1. The respondent's notice of motion for an interlocutory injunction be dismissed. 2. Costs be paid to the applicant by the respondent in respect of the hearing on 2 May 1996 pursuant to section 170EHA Industrial Relations Act 1988. Such costs to be fixed by the District Registrar of the Court. 3. Liberty to apply is reserved to each party on not less than 48 hours' written notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court of Australia Rules.

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VI 1491 of 1996 BETWEEN: ROSLYN FENECH Applicant AND: PERFECT HEALTH MEDICAL CENTRES PTY LTD Respondent JUDGE: Marshall J PLACE: Melbourne DATE: 2 May 1996 EX-TEMPORE REASONS FOR JUDGMENT AS REVISED FROM THE TRANSCRIPT On 28 March 1996 the applicant filed in the Australian Industrial Relations Commission ("the Commission") her application pursuant to section 170EA Industrial Relations Act 1988 ("the Act") for a remedy in respect of the termination of her employment by the respondent. The applicant sought reinstatement, compensation and damages in respect to alleged action taken by the respondent to affect her credit rating. On 4 April 1996, the respondent filed in the Commission a notice of employer's appearance and gave the reason for the termination as being the misconduct of the applicant. A conciliation conference took place in the Commission. On 22 April 1996, Commissioner Frawley issued a certificate pursuant to section 170ED(1) of the Act stating that the Commission had been unable to settle the matter by conciliation within a reasonable period. The Commissioner further certified that the parties having been invited to elect to have the matter dealt with by consent arbitration had not so elected. On 29 April 1996, the listing co-ordinator of the Industrial Relations Court of Australia wrote to the parties advising of a directions hearing to be held on 21 May 1996 at 10.00 am in the Court. This afternoon, the Registry advised me of the desire of the respondent to bring to the Court's attention a notice of motion for an injunction. The Court was requested to abridge time in relation to that matter and I do so. The injunction requested by the respondent effectively sought that the applicant deliver up possession of a Honda Prelude motor vehicle to the respondent pending the hearing and determination of the proceeding. Alternatively, it was sought that the applicant be restrained from selling, surrendering or otherwise disposing of the vehicle. The Court was informed that if the applicant was not restrained from doing so she would shortly dispose of the vehicle in relation to which the respondent claims an interest. At the hearing of the notice of motion for interlocutory relief this afternoon Mr Upjohn represented the respondent and Mr Loewenstein represented the applicant. The Court would not be in a position to find that there is a serious issue to be tried in the matter if it was of the view that it did not have the jurisdiction to deal with the matter raised by the respondent. Shortly after the commencement of the proceedings the Court informed counsel for the respective parties of the decision of the Court as currently constituted in John Sutherland v Fabglass Bathroom Products Proprietary Limited, ("Sutherland"), VI 2059 of 1995, Industrial Relations Court of Australia, Marshall J, 26 July 1995, as yet unreported. In the view of the Court the dispute as to the ownership of the vehicle in question does not arise out of the same substratum of facts which is relevant to the application pursuant to section 170EA of the Act. The relevant issue so far as the Court is aware from the application and the notice of employer's appearance under section 170EA of the Act is whether there is a valid reason for the termination of the applicant's employment based on her alleged misconduct. That is the issue that the Court will have to determine. Questions of remedy, if the application is otherwise made out, will then become relevant and the Court may have to consider the issue of whether the applicant is entitled to damages as a result of the loss of credit rating. The respondent asserts that the loss of credit rating is in some way related to the issue as to ownership of the car. The applicant disavows that matter and, it seems, for the purposes of the current proceeding for interlocutory relief, that that matter can be put aside because it is not clear to the Court that the question of damages for loss of credit rating is relevant in any way to the issue of the ownership of the motor vehicle. The facts relevant to determination of the issues before the Court in the application under section 170EA do not bear on the question as to who owns the particular motor vehicle. The circumstances of this matter are materially indistinguishable from those in Sutherland. The application for the interlocutory injunction must be dismissed as the Court does not have jurisdiction to deal with the matters sought to be ventilated in it. The applicant sought costs of the proceedings today, pursuant to section 170EHA of the Act. That section applies to applications that have been commenced on and from 15 January 1996, and was inserted by Act number 168 of 1995 by schedule 2(12) thereof. It provides as follows: "If, in relation to a matter referred to the Court under section 170ED, the Court is satisfied that a party to the proceeding has caused any other party to the proceeding to incur costs because of an unreasonable act or omission of the first mentioned party in connection with the conduct of the proceeding following the referral, the Court may order the first mentioned party to pay all or part of the costs incurred by that other party." In my view the application for the interlocutory injunction sought today seeking to invoke the accrued jurisdiction of the Court was fundamentally misconceived. There was no basis for the submission that the jurisdiction of the Court was attracted in relation to it. Mr Upjohn raised the question of the decision in Sutherland being unreported. However, the decision does no more than reflect the state of the law as referred to in three High Court cases and in a judgment of the Federal Court of Australia. The prospects of success of the application for interlocutory relief were virtually nil and on that basis it cannot be said that this was a matter where a claim which had some merit was simply found unmeritorious on the better view of the matter. Therefore, in my view, it is appropriate to order costs pursuant to section 170EHA of the Act in favour of the applicant. The orders of the Court will be: 1. The respondent's notice of motion for an interlocutory injunction be dismissed. 2. Costs be paid to the applicant by the respondent in respect of today's hearing pursuant to section 170EHA Industrial Relations Act 1988. Such costs to be fixed by the District Registrar of the Court. 3. Liberty to apply is reserved to each party on not less than 48 hours' written notice. I certify that the preceding 5 pages are a true copy of the Reasons for Judgment of his Honour Justice Marshall Associate: Date: 2 May 1996 Counsel for the applicant: Mr J D Loewenstein Solicitor for the applicant Rigby Cooke Counsel for the respondent Mr I Upjohn Solicitor for the respondent Webb Korfiatis & Hassett Date of hearing 2 May 1996 Date of judgment 2 May 1996