Roger Coyne v Ansett Australia Limited [1996] IRCA 37

DECISION NO: 37/96 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - review of DECISION of JUDICIAL REGISTRAR - whether stay APPLICATION can be heard by JUDICIAL REGISTRAR - appropriate test for determining whether the ORDERS of a JUDICIAL REGISTRAR should be stayed. INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 376(1), 376(7), 377 INDUSTRIAL RELATIONS COURT RULES, O37r10, O74, O74r2 Wyndham Lodge Nursing Home Inc v Cecile Reader (unreported, IRCA No. 555/95, Marshall J, 4 October 1995) Andrews v Uniting Church in Australia Frontier Services trading as Old Timers (unreported, IRCA No. 478/95, Gray J, 19 September 1995) Bysouth v Tawlord Nominees Pty Ltd (unreported, IRCA No 382/95, Keely J, 27 June 1995) Westaflex (Aust) Pty Ltd and Others v Wood and Others (1990) 18 IPR 168 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NFWLR 685 ROGER COYNE -v- ANSETT AUSTRALIA LIMITED - WI 1956 of 1995 BEFORE: BOON JR PLACE: PERTH DATE: 8 FEBRUARY 1996

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 1956 of 1995 BETWEEN: ROGER COYNE - Applicant AND: ANSETT AUSTRALIA LIMITED - Respondent MINUTE OF ORDERS BEFORE: BOON JR PLACE: PERTH DATE: 8 FEBRUARY 1996 THE COURT ORDERS THAT: 1. The operation of the orders made on 22 December 1995 determining the application filed pursuant to Section 170EA of the Act in respect of the termination of the employment of Roger Coyne be stayed pending the hearing and determination of the review or until further order of the Court. 2. The respondent, Ansett Australia Limited, pay the amount of $14,551.15, being compensation ordered to be paid between the date of termination and 22 December 1995, within seven days of this date to the Registrar of the Court to be held in trust in an interest bearing account pending the hearing and determination of this matter or until further order. 3. The matter be adjourned to a directions hearing on 15 February at 9.30 am. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 1956 of 1995 BETWEEN: ROGER COYNE - Applicant AND: ANSETT AUSTRALIA LIMITED - Respondent BEFORE: BOON JR PLACE: PERTH DATE: 8 FEBRUARY 1996 REASONS FOR JUDGMENT By application dated 11 August 1995 the applicant, Mr Coyne, applied under Section 170EA of the Industrial Relations Act seeking reinstatement and compensation arising out of the alleged unlawful termination of his employment by the respondent. The matter was heard on 7 and 8 November 1995. Prior to the hearing of the substantive application, the applicant sought, and was granted, an extension of time for the filing of the substantive application. On 22 December 1995 the following orders were made: 1. The respondent reinstate the applicant to the position in which he was employed immediately before his accident in 1993. 2. The respondent pay to the applicant compensation in the sum of $375.86 per week from 27 March 1995 until the date of reinstatement. By applications on notice of motion, Ansett Australia Limited has applied for a review of the decision to grant an extension of time within which to apply under Section 170EA and for a review of the decision to reinstate and grant compensation to Mr Coyne. Ansett Australia Limited has also sought an order that the operation of the orders made by me on 22 December 1995 be stayed pending the hearing and determination of the review or until further order of the Court. The applications for review will, in due course, be heard and determined by a Judge of this Court. The matter presently before me is the question of the application for a stay of the orders made on 22 December 1995. It was argued on behalf of Ansett Australia Limited that a Court constituted by a Judicial Registrar does not have the power to deal with a stay application. This is because the Court as constituted by a Judicial Registrar is exercising a delegated power under Section 376 of the Industrial Relations Act. It was argued that a Judicial Registrar, having exercised the delegated powers and having made orders, cannot then exercise the further powers of the Court in the context of a Section 377 application for review. The powers of Judicial Registrars are derived from Section 376 of the Industrial Relations Act. Subsection (1) of Section 376 deals with the delegation of the Court's powers to Judicial Registrars in relation to claims for an amount of not more than the amount specified in the rules or a claim that the termination of an employee's employment was unlawful. Order 74 rule 2 of the Industrial Relations Court Rules states as follows: "2 In relation to any proceeding in the Court, insofar 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 are delegated to each Judicial Registrar." Thus Order 74 relates to the powers delegated under Subsection (1) of Section 376 of the Act. Subsection (7) of Section 376, however, states as follows: "376(7) [Other powers of Judicial Registrars] 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." Further, Order 37 rule 10 states: "10. The Court may stay execution of a judgment or order." Order 37 Rule 10 does not appear to be limited. I take the view that as the terms of Subsection (7) of Section 376 are so broad, and as it is consistent with the efficient operation of the Act, Judicial Registrars do have the power to grant a stay of the operation of their own orders made under the delegated power. This appears to be consistent with what the Industrial Relations Act is trying to achieve by the appointment of Judicial Registrars. If it were otherwise, because of the shortage of available Judges' time, the system would clog up if each application for a stay could only be heard by a Judge. The respondent further submitted that in considering whether or not to grant a stay of the order made by the Judicial Registrar, it was necessary to consider the merits of the application for a review and the chance that the Judicial Registrar's decision will be overturned by a Judge. Because of this, it was argued that the Judicial Registrar who originally heard the matter should not hear the application for a stay as there would a reasonable apprehension that that Judicial Registrar would be biased. I reject that submission. In other jurisdictions, applications for stays are normally heard by the Court which considered the matter at first instance. If the argument of the respondent is correct, then a similar charge of apprehension of bias could be levelled at any Judge hearing an application for a stay of his or her decision. Although I appreciate that the respondent's submission is that a different test should be applied to considerations of a stay of a Judicial Registrar's decision as opposed to the test applicable on an appeal, if as the respondent submits this Court must consider all of the circumstances of the case in deciding whether or not it is fair and just to grant a stay of an order made by a Judicial Registrar, the Judicial Registrar who heard the matter at first instance will be in the best position to take into account all of these circumstances. In the case of Wyndham Lodge Nursing Home Inc v Cecile Reader (unreported, IRCA No. 555/95, 4 October 1995) Marshall J said at page 2: "It is well established that a party which applies to stay orders of the Court pending the hearing and determination of an appeal is required to show special or exceptional circumstances to justify the making of such orders. It is also required to justify 'departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal'." The test set out by Justice Marshall in that case is one which has been consistently applied in other jurisdictions in a case in which a party applies to stay the orders of a Court pending the hearing and determination of an appeal. That case, however, concerned an application for a stay of Justice Marshall's decision pending an appeal to the Full Court of this Court. Counsel for the respondent argued that a different test should be applied when considering the stay of a Judicial Registrar's order pending the hearing of a review. This Court was referred to the decision of Gray J in Andrews v Uniting Church in Australia Frontier Services trading as Old Timers (unreported, IRCA No. 478/95, 19 September 1995). His Honour said in that case as follows: "It is now clearly established that, in order that the delegation of the powers of the Court to a Judicial Registrar be valid constitutionally, there must exist a review as of right. For similar reasons, the review provided by Section 377 of the Act is conducted by means of a hearing de novo, in the sense that 'the parties are not bound by the course they took before the Judicial Registrar, where they have the right to adduce such further evidence as they wish, perhaps to adopt positions and put contentions different from those adopted before, and put to, the Judicial Registrar' (Gibson at p.247). The duty of the Judge is to ignore the findings and conclusions of the Judicial Registrar, except insofar as they may be adopted by the parties, and to deal with the matter afresh, even if relying on the evidence which was before the Judicial Registrar, supplemented as necessary. In a sense, the exercise of the review is the real exercise of the judicial power of the Commonwealth in relation to the 'matter' which constitutes the controversy between the parties. The exercise of delegated powers by a Judicial Registrar may be substituted for this exercise of judicial power, but only if each party is free to seek the exercise of the judicial power in relation to the matter. The difference between a review and an appeal is emphasised by the provision in Section 377(2) of the Act to the effect that the Court may review a Judicial Registrar's exercise of a power of the Court's own motion." Counsel for the respondent also referred to the decision of Keely J in the case of Bysouth v Tawlord Nominees Pty Ltd (unreported, IRCA No. 382/95, 27 June 1995). In that case the Judicial Registrar had at first instance ordered that the amount of $6,000 be paid to the applicant by the respondent. Keely J said: "In my opinion in Section 377(2) the words '.... whichever order he considers is appropriate in relation to the matter in relation to which the power was exercised' confer power on the Court to make an order before the hearing of the review, staying the order made by the Judicial Registrar and if it considers it just to do so, ordering an amount be paid by the respondent employer to the registrar pending the hearing and determination of the review." Counsel for the respondent submitted, in view of these cases, that a review of a Judicial Registrar's decision is not the same as an appeal. Further, it was submitted that a review by a Judge is a totally new proceeding. It was argued that Keely J's dicta in the Bysouth v Tawlord Nominees case were consistent with this approach. It was argued that in considering whether or not to grant a stay of the Judicial Registrar's order, the Court should consider what is best to maintain the status quo, for once an application for a review has been filed the Court considers the matter afresh as if there had been no decision by a Judicial Registrar. The Court was referred to dicta by Gray J in the Federal Court case of Westaflex (Aust) Pty Ltd and Others v Wood and Others (1990)18 IPR 168. In that case, Gray J adopted dicta from the Court of Appeal of New South Wales in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NFWLR 685 at 694-5 where the Court said: "In our opinion it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reasonable and appropriate case to warrant the exercise of discretion in its favour. There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties: .... the Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it". Counsel for the respondent argued that this Court must look at the position of the applicant, the position of the respondent, and the other parties who may be affected. These have to be considered in the context of the original decision. The respondent argued that there is merit in the application for the review as the original application was considerably out of time. It was argued on behalf of Ansett Australia that if a stay of my original order is granted, the applicant cannot come out of the review process worse off. This is because if the Court eventually confirms the order for reinstatement and payment of compensation between the date of termination and the date of reinstatement, Mr Coyne will have received his wages without having had to work for them. In relation to the question of what is the appropriate test to apply when considering an application for a stay of a Judicial Registrar's order, I have some sympathy for the argument that the principles should be less strict than those to be applied in the case of an appeal from a Judge's decision. This is because of the special nature of the Judicial Registrar's powers and the review process. Even if the appropriate test is that of special or exceptional circumstances, I consider that it is appropriate in this case to order a stay. In arriving at this decision, I have taken into account the fact that Ansett is a large organisation which will have funds available to pay any compensation which it may eventually be ordered to pay; the fact that Mr Coyne delayed seeking a remedy from this Court for a considerable period of time and Ansett acted to replace Mr Coyne because it was not aware that the decision to terminate his employment was being challenged; that Mr Coyne has now established his own business and derives an income from that business; and the fact that counsel for Ansett Australia indicated that Ansett would be prepared to pay the amount of compensation ordered to be paid by me to the Registrar of the Court to be held in trust in an interest bearing account pending the hearing and determination of the review. Counsel for the applicant indicated that in his view, this matter was one which should be referred to the Full Court for a determination of the principles surrounding an application for leave to apply out of time. It was said that there was no Full Court authority on this question and that there was a public interest in having the matter referred to the Full Court. Quite apart from the question of whether or not I have any power to refer the matter to the Full Court, I do not consider it appropriate in this case in any event to do so. In all the circumstances, I consider that the following orders are appropriate: 1. The operation of the orders made on 22 December 1995 determining the application filed pursuant to Section 170EA of the Act in respect of the termination of the employment of Roger Coyne be stayed pending the hearing and determination of the review or until further order of the Court. 2. The respondent, Ansett Australia Limited, pay the amount of $14,551.15, being compensation ordered to be paid between the date of termination and 22 December 1995, within seven days of this date to the Registrar of the Court to be held in trust in an interest bearing account pending the hearing and determination of this matter or until further order. 3. The matter be adjourned to a directions hearing on 15 February at 9.30 am.

I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon. Associate Date: Counsel for the applicant: Mr M L Segler Solicitors for the applicant: E N Stamatiou & Co Counsel for the respondent: Mr F Parry Solicitors for the respondent: Freehill, Hollingdale & Page Hearing date: 24 January 1996 Judgment date: 8 February 1996