IN THE INDUSTRIAL RELATIONS COURT)

OF AUSTRALIA                     )         No. ACTI.1012 OF 1996

AUSTRALIAN CAPITAL TERRITORY     )

DISTRICT REGISTRY                )

 

 

 

           ON APPEAL AGAINST A SINGLE JUDGE OF THE

           INDUSTRIAL RELATIONS COURT OF AUSTRALIA

 

 

 

                             BETWEEN:  JANICE SHACKLEY   

 

                                      Appellant

 

 

                             AND:      THE AUSTRALIAN CROATIAN CLUB LIMITED

 

                                      Respondent

 

 

 

 

BEFORE:   WILCOX CJ, von DOUSSA J and NORTH J

PLACE:    SYDNEY

DATE:     17 DECEMBER 1996

 

                      MINUTES OF ORDER

 

THE COURT ORDERS THAT:

 

1.        The appeal be allowed and the decision of Moore J refusing the appellant's application for costs be set aside.

 

2.         The said application be remitted to Moore J for further determination.

 

Reasons

IN THE INDUSTRIAL RELATIONS COURT)

OF AUSTRALIA                     )         No. ACTI.1012 OF 1996

AUSTRALIAN CAPITAL TERRITORY     )

DISTRICT REGISTRY                )

 

 

 

           ON APPEAL AGAINST A SINGLE JUDGE OF THE

           INDUSTRIAL RELATIONS COURT OF AUSTRALIA

 

 

 

                             BETWEEN:  JANICE SHACKLEY   

 

                                      Appellant

 

 

                             AND:      THE AUSTRALIAN CROATIAN CLUB LIMITED

 

                                      Respondent

 

 

 

 

BEFORE:   WILCOX CJ, von DOUSSA J and NORTH J

PLACE:    SYDNEY

DATE:     17 DECEMBER 1996

    

 

                    REASONS FOR JUDGMENT

 

 

WILCOX CJ:     The issue in this appeal is whether the learned primary Judge (Moore J) was precluded by s 347 of the Industrial Relations Act 1988 (now known as the Workplace Relations Act 1996)("the Act") from awarding costs to the appellant in respect of a review by the Judge of a decision of a Judicial Registrar.  The Judicial Registrar held that the respondent unlawfully terminated the employment of the appellant, Janice Shackley, and awarded her $11,500 compensation under s 170EE(2) of the Act.  On review Moore J agreed with the Judicial Registrar's view about unlawfulness but increased the award of compensation to $12,100.  Counsel for Ms Shackley sought costs of the review.  He submitted that the application for review had been made vexatiously or without reasonable cause.  Without announcing any attitude to that submission, Moore J held that s 347 precluded the order sought.  Section 347 reads:

 

           "347(1)    A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.

 

               (2)    In subsection (1):

 

                     'costs' includes all legal and professional costs and disbursements and expenses of witnesses." 

 

 

 

The primary Judge's reasoning

 

 

           After referring to the history of the litigation and quoting s 347, Moore J stated the first issue he had to determine as "whether, for the purposes of s 347, the review is a separate proceeding from the proceeding before the Judicial Registrar".  He said there were two conflicting judgments on that question:  my decision in Foxcroft v The Ink Group Pty Ltd (1994) 1 IRCR 215 and Gray J's decision in Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437.  Moore J commented:

 

                "When confronted in this matter with the question of whether the review is a separate proceeding my initial view was that it was.  That was principally because the orders made by a Judicial Registrar in exercise of delegated powers would finally dispose of a matter unless and until a review was undertaken of the exercise of that delegated power.  Further, at least ordinarily, the review would be undertaken as the result of an application being made by a party aggrieved by the Judicial Registrar's determination.  A review was, in practice, much the same as an appeal which might be treated as a separate proceeding.  It would have followed that a costs order could be made against the applicant for the review if the preconditions imposed by s 347 were satisfied."

 

 

           However, Moore J went on to say that, having had the benefit of Gray J's reasons in Andrews, he had concluded that a review does not constitute a separate proceeding, though his reasons differed slightly from those of Gray J.  He referred to his discussion of the word "proceeding" in Grout v Gunnedah Shire Council (1995) 129 ALR 372 at 382-384, commenting that the Act uses the words "proceeding" and "proceedings" interchangeably.  He noted the definition of "proceeding" in s 360 of the Act.  This definition provides that, in Part XIV of the Act, "proceeding" means "a proceeding in a court, whether or not between parties" and includes "an incidental proceeding in the course of, or in connection with, a proceeding" and "an appeal".  However, s 347 is not in Part XIV of the Act.  Recognising this, Moore J observed that the definition "does not assist in determining whether a review is part of the proceeding arising from the original application under s 170EA for the purpose of s 347".

 

           Notwithstanding this conclusion, Moore J devoted attention to the use of the word "proceeding" in ss 376 and 377, two sections which are included in Part XIV and thus subject to the special definition.  Indeed, he described the two sections, which deal with Judicial Registrars' delegated powers, as being "of central importance".  His Honour did not specify why this was so; but he went on to analyse the nature of the task imposed on the Court when a party seeks review under s 377(1) of "a Judicial Registrar's exercise in the proceedings of a (delegated) power".  By s 377(2) the Court may review that exercise of power and make "whatever order it considers appropriate in relation to the matter in relation to which the power was exercised".  Moore J commented:

 

                "It thus appears that s 377 is drafted on the premise that the proceeding in which a Judicial Registrar has exercised delegated powers has a continuing existence which becomes one of substance if a review is undertaken by a Judge either on application or of the Court's own motion. ... That a Judge may undertakes [sic] a review of his or her own motion and is not limited as to time in which it can be done indicates that the application and the proceeding it gives rise to has [sic] a continuing existence even after orders are made by a Judicial Registrar."

 

 

His Honour then referred to s 376(1):

                "Indeed s 376(1) provides further support for the notion that the review is part of the one proceeding.  The powers delegated to a Judicial Registrar are the 'Court's powers in relation to proceedings in the Court'.  As relevant here, they are powers that are delegable 'insofar as the proceedings relate to: ... (b) a claim that the termination of an employee's employment was unlawful ...':  see s 376(1).  The Court is constituted by the Judges:  see s 361.  It is in proceedings in the Court that the delegated powers are exercised by Judicial Registrars.  It is consistent with the terms of s 376 to view the claim that a termination was unlawful as giving rise to a proceeding in the Court that is finally concluded when the claim is adjudicated upon by a Judge:  see s 376(5) or by a delegate of the Court's powers but subject to a review under s 377.  If a review occurs then the proceeding concludes when the claim is adjudicated upon by a Judge."

 

He concluded:

 

                "The review forms part of the proceeding arising from the application made under s170EA.  Accordingly an order for costs could only be made against Ms Shackley and only then if the application under s170EA had been made vexatiously or without reasonable cause.  No order for costs can be made against the Club."

 

 

           Moore J offered the opinion that there were "reasonably compelling arguments that an employee in the position of Ms Shackley should not have to bear the burden of legal representation in a review after having succeeded before a Judicial Registrar".  But he thought himself precluded from ordaining otherwise.

 

Foxcroft

           It is desirable, before analysing the decision under appeal, to refer to the earlier cases mentioned by the primary Judge.

 

           The relevant passage in Foxcroft is at 219.  It is short; I thought the position so clear as to require little discussion.  After referring to the Court's power to make a costs order, as established in Canceri v Taylor (1994) 1 IRCR 120, and setting out s 347, I said:

 

                "In applying this section, it is important to note that it refers to costs incurred by another party in 'a proceeding ... in a matter'.  Within the one matter there may be a multiplicity of proceedings; for example, an appeal to a Full Court (see Marsh v Adamson (1985) 5 FCR 124),  an application for leave to appeal (see Thompson v Hodder (1989) 21 FCR 467) or a motion for punishment for contempt (see Gregory v Philip Morris Ltd (1987) 20 IR 407).  An application for review of a Judicial Registrar's decision is a proceeding in a matter.  If an application is made vexatiously or without reasonable cause, the exception in s 347 operates to permit the Court to order the applicant for review to pay the costs incurred by any other party in connection with that application."

 

 

Andrews

 

           In Andrews, Gray J dealt extensively with the point.  He said at 439 that he thought it "fundamentally wrong" to characterise a review application as a "proceeding" for the purposes of s 347.  The judgment in Foxcroft contained "no clear chain of reasoning" that would lead to the conclusion -

 

                "that an application for review of a Judicial Registrar's decision should be viewed in the same way as an appeal, an application for leave to appeal or a motion for punishment for contempt of Court". 

 

 

He noted that, in Bysouth v Tawlord Nominees Pty Ltd (1995) 60 IR 446, Keely J followed Foxcroft but "did not supply the reasoning which was missing".

 

           Gray J then discussed the three cases mentioned in Foxcroft.  Referring to Marsh v Adamson, he agreed that an appeal is a "proceeding" within the meaning of s 347.  He observed that Thompson v Hodder was an unsuccessful application for leave to appeal against the refusal of an order staying the discharge of a rule to show cause.  He quoted what the Full Federal Court (Keely, Gray and Ryan JJ) had said at 469:

 

                "This argument ignores the careful wording of s 347(1) of the Act.  The prohibition on orders to pay costs is applicable not to a proceeding arising under the Act, but to a proceeding in a matter arising under the Act.  There is much authority as to what constitutes a 'matter' for the purposes of Ch III of the Constitution.  In substance, a 'matter' is 'a single justiciable controversy'.  See the joint judgment of Mason, Murphy, Brennan and Deane JJ in Fencott v Muller (1983) 152 CLR 570 at 608.  In the present case, the justiciable controversy between the parties embraces the question whether the respondents should perform and observe the rules of the Union by taking or refraining from certain actions in relation to the charges laid against the appellants.  Orders for performance and observance of the rules accordingly are sought pursuant to s 209 of the Act.  The alleged obligation to perform and observe the rules in that way is thus the 'matter' upon which each proceeding between the present parties has been founded, namely the rule to show cause granted on 7 June, the interim orders made on 9 June, the appeal filed on 17 October, the motion for a stay of judgment filed on 25 October and the application for leave to appeal from the judgment of O'Loughlin J.  Each of those steps is a 'proceeding' as defined in s 4 of the Federal Court of Australia Act.  It is unnecessary at present to determine whether, in the absence of a similar definition in the Act, the word 'proceeding' in s 347(1) should receive a similar interpretation.  It is enough to say that, on any view, an application for leave to appeal, even from an interlocutory judgment, is a proceeding in its own right."

 

 

After this quotation, Gray J commented: 

 

 

                "It is to be noted that the Full Court expressly reserved the question whether the word 'proceeding' in s 347 of the Act should receive an extended meaning, in the absence of an extended definition, such as that found in s 4 of the Federal Court of Australia Act.  It is that question which really arises for determination in the present case."

 

 

           I would not postulate the question in Andrews in that way.  Gray J was not concerned with the definition of "proceeding" in the Federal Court of Australia Act.  He had to determine the same question as that addressed in Thompson v Hodder, namely whether a particular application was a "proceeding" within the meaning of s 347 of the Industrial Relations Act.  In Thompson v Hodder the Full Court decided that question affirmatively in relation to an application for leave to appeal from an interlocutory order and made a costs order.  The question in Andrews was whether that decision applied to an application for review of the decision of a Judicial Registrar.

 

           The final case mentioned in Foxcroft was Gray J's decision in Gregory that a motion to punish a person for contempt of court was a "proceeding" within the meaning of s 347.  As his Honour pointed out in Andrews, in deciding Gregory he had followed Viner v Australian Building Construction Employees' and Builders Labourers' Federation (No.1) (1981) 56 FLR 5, a decision of Northrop J in relation to the precursor of s 347, s 197A of the Conciliation and Arbitration Act 1904.  In Andrews at 441, Gray J quoted a statement of Northrop J in Viner at 29 that the word "proceeding" in s 197A:

 

                "is to be read as an action between parties to a matter arising under the Act.  In that sense, it is capable of including all steps arising in that matter and therefore is to be given both the meanings of a step in a proceeding as well as the action itself".

 

 

Northrop J supported this statement by a reference to Halsbury's Laws of England.  Gray J went on:

 

                "The passage from Halsbury's Laws of England, to which his Honour referred reads as follows:

 

                     'The term "proceeding" is frequently used to denote a step in an action, and obviously it has that meaning in such phrases as "proceeding in any cause or matter".  When used alone, however, it is in certain statutes to be construed as synonymous with, or including, "action"'.

 

                At 2, there is a definition of the word 'action':

 

                     `An "action", according to the legal meaning of the term, is a proceeding by which one party seeks in a court of justice to enforce some right against, or to restrain the commission of some wrong by, another party.  More concisely it may be said to be "the legal demand of a right", or "the mode of pursuing a right to judgment".'

 

                What I understand Northrop J to have been saying in Viner is that the word 'proceeding' in s 197A of the Conciliation and Arbitration Act was read correctly as meaning an action and not as referring separately to every interlocutory step taken in the conduct of such action."

 

 

           With respect to Gray J, it seems to me that Northrop J was saying the opposite.  I do not see any other basis for his statement, in the context of s 197A, that the word "is to be given both the meanings of a step in a proceeding as well as the action itself"  (my emphasis).

 

           Gray J pointed out in Andrews that it is easy to regard a motion for orders against a non-party to an existing proceeding as a "proceeding" in its own right.  I agree.  But he continued at 441-442:

 

                "In a similar way, both an appeal and an application for leave to appeal may be seen to create a new legal controversy between the same parties to an earlier legal controversy; the disputed issues may be within the ambit of the original legal controversy, but it is possible to regard the appeal or application for leave to appeal as a separate 'proceeding'.  By contrast, a motion which might be made requesting interlocutory orders in the course of the pursuit or defence of an application may be regarded as part of the proceeding commenced by that application.  There may be many such interlocutory motions.  It is hardly to be supposed that the intention of the legislature was that a motion to strike out a pleading, seek leave to administer interrogatories or rectify inadequacies in the process of discovery of documents was to be regarded as a 'proceeding' for the purposes of s 347 of the Act, so that the issue whether such a motion was instituted vexatiously or without reasonable cause would arise on the determination of each such motion.  The line may be unclear, but it exists, between a step which does not constitute a 'proceeding' for the purposes of s 347 of the Act and a step which does."

 

 

 

           The passage itself points up the difficulty in the distinction that Gray J sought to make.  Why is an application for review of a Judicial Registrar's decision not "a new legal controversy between the same parties to an earlier controversy", just as much as an appeal or application for leave to appeal?   Unless and until it is set aside on review under s 377, a Judicial Registrar's decision is as effective, and as much an exercise of the Court's jurisdiction, as a decision of a Judge:  see s 376(4) of the Act and the Full Court decision in Norman v Besser Industries (NT) Pty Ltd (Moore, Marshall and Madgwick JJ, 1 August 1996, not yet reported).  A Judge's decision is final unless there is an appeal; a Judicial Registrar's decision is final unless there is an application for review.  In each case the decision will stand unless a party chooses "to create a new legal controversy", to use Gray J's words.

 

           Gray J gave no reason for his assumption that Parliament did not intend to treat a procedural motion as a "proceeding", for the purposes of s 347.  I do not see why this assumption should be made.  Parliament might reasonably have considered it appropriate to enable the Court to protect a party against the financial consequences of unjustifiable interlocutory applications.

 

           In Andrews Gray J went on at 442-443 to discuss the nature of an application for review of a Judicial Registrar's decision.  I do not agree with everything he said on that subject but ordinarily I would think it unnecessary to traverse the matter in this case; for present purposes, it seems to me not to matter what view one takes about the extent of the review power conferred by s 377.  However, for two reasons, I think I should say something.  First, some confusion seems to have developed about the scope of the review power.  Second, in Andrews Gray J linked his conclusion directly to his view about that issue of scope.

 

           In Hitchcock v Warner Bros Movie World (1995) 130 ALR 337 Moore J held incompetent an application to review a decision of a Judicial Registrar concerning a preliminary issue.  In that case the employer had contended that the Court had no jurisdiction because reg 30B of the Industrial Relations Regulations excluded the employee from the operation of Division 3 of Part VIA of the Act.  The Judicial Registrar agreed to determine this contention as a preliminary issue.  After taking some evidence and hearing submissions, he rejected the contention, with the result that he needed to hear the remaining issues in order to determine the claim.  But the employer sought review of the Judicial Registrar's ruling on the preliminary issue.  Moore J held, in effect, that this application was premature; the Judicial Registrar had not exercised a power to which s 377 relates.  He had merely expressed a view about one matter bearing on his jurisdiction.  He had not dealt exhaustively with the question of jurisdiction or determined whether there was a termination of employment at the initiative of the employer.  Moore J expressly reserved his opinion on what would have been the position if the Judicial Registrar had dealt with jurisdiction as a separate issue pursuant to an order under Order 29 of the Court's Rules. 

 

           In Nixon v Ord Minnett Limited (No 2) (1996) 64 IR 360, Marshall J had to determine the question left open by Moore J in Hitchcock.  There was an issue as to whether s 170CD of the Act precluded the applicant from bringing an application under s 170EA, because of the amount of his wages.  A Judicial Registrar ordered that this issue be decided separately from any other question and before trial of the proceedings.  Another Judicial Registrar conducted a trial of the separate issue and determined that the applicant was not precluded by the section.  The employer sought review of this decision but Marshall J held the application to be incompetent.  He said at 368 that:

 

                "the intention of the Act is to provide the parties to a proceeding heard by a Judicial Registrar with a right to seek a review of that exercise of such power at the conclusion of its exercise.  In my view the exercise of the powers of the Court under O 29 to try a separate issue of jurisdiction is only reviewable if that issue of jurisdiction is decided in a way that concludes the matter.  In such circumstances the order of the Judicial Registrar will be a final one."

 

 

           North J considered Hitchcock and Nixon in Spencer v Baseball Queensland Inc (15 July 1996, not yet reported).  His Honour was asked to review an order made by Judicial Registrar Murphy transferring the matter from the Victoria District Registry to the Queensland District Registry.  He held that the application was incompetent.  In so holding he referred to what he called "the underlying rationale" of s 377:

 

                "namely, that Parliament could not have intended that the course of a proceeding before a judicial registrar would be interrupted by reviews of interlocutory decisions made on the path to a final determination, whether made before or during the trial of the proceeding.  The principle focuses upon the judicial registrar coming to a final determination, and the review attaches itself to the final determination as its point of operation."

 

 

 

           In Matar v Neutral Bay Foodhall (26 July 1996, not yet reported) I upheld the competency of an application to review a decision of a Judicial Registrar joining Mr Matar as an additional respondent to the principal proceeding.  The joinder order had been made pursuant to a notice of motion made returnable before the commencement of the trial.  In giving my reasons I referred to Hitchcock, Nixon and Andrews; I was not then aware of Spencer.  It may be useful to repeat what I said:

 

                "The authorities all make it clear that a review relates to the exercise of the relevant power.  So the right of review arises only when that exercise is complete.  The problem lies in determining what constitutes a relevant exercise of power.  In Andrews at 442, Gray J expressed the opinion that a ruling on evidence is not subject to review.  As I understand his Honour's approach, he accepted that, in making a ruling, a Judicial Registrar is exercising a power delegated by the Rules; but he thought that the relevant power, for the purposes of s 377(1), is the power to hear and determine the proceeding itself.  Consequently, the right of review arises only when that task is complete.  At that time, of course, the party seeking review is entitled to reopen all aspects of the hearing before the Judicial Registrar ..."

 

 

           I observed that the view expressed by Gray J about a ruling on evidence is consistent with the decisions in both Hitchcock and Nixon.  I indicated agreement with that view and those decisions.  I rejected a suggestion by counsel that these decisions were (relevantly) inconsistent with Foxcroft.  I said:

                "As the Rules delegate to the Judicial Registrar 'all the powers of the Court' in respect of unlawful termination claims, they plainly delegate the Court's powers to make interlocutory orders in respect of such claims.  As s 377(1) authorises a party to apply for review of the 'Judicial Registrar's exercise in the proceedings of a (delegated) power', it obviously extends to review of a Judicial Registrar's exercise of power in connection with an interlocutory application.  But the question remains:  what is the relevant exercise of power?

 

                It seems to me that there is a clear distinction between a ruling made in the course of a hearing, on the way to determination of a proceeding, and a ruling determining an interlocutory application commenced by Notice of Motion.  In each case the ruling constitutes an exercise of delegated power.  In each case it is interlocutory in nature, in the sense that it does not finally dispose of the principal proceeding.  However, in the first case, the Judicial Registrar makes the ruling only in the course of performing a larger task, the hearing and determination of the proceeding itself.  The performance of that task is the exercise of power that is subject to review; so no right of review is available until the task is complete.  In the second case, the Judicial Registrar has only a limited task:  to determine what orders to make in answer to a Notice of Motion.  The trial of the principal proceeding might be taken by someone other than the Judicial Registrar who determined the Notice of Motion.  If a Judicial Registrar's task is limited to determining the Notice of Motion, that Judicial Registrar's exercise of power is complete when he or she makes orders in respect of it.  A right of review is then available."

 

          

 

           The problem with Andrews, with respect, is that Gray J did not advert to this distinction.  He lumped together all the rulings that a Judicial Registrar might make before the final determination of a claim.  No doubt this caused North J to decide Spencer in the way he did.  But that case provides an excellent illustration of the importance of the distinction.  The effect of North J's decision was that the applicant was deprived of any opportunity, at any stage, to obtain an effective review of the Judicial Registrar's order transferring the proceeding to the Queensland Registry.  Presumably the reason why the applicant instituted the action in the Victorian Registry and resisted the application for transfer to Queensland was that he thought it would be burdensome to be forced to litigate the claim in Queensland.  Presumably he wished to put that argument on review.  But he was told that he could not do this until he had done the very thing he sought to avoid:  litigate the case in Queensland.  Moreover, at that stage, the transfer order would be of merely historical interest.  By that time the relevant issue would not be Judicial Registrar Murphy's transfer order, but rather the merits of the claim.

 

           In summary, I accept that a decision made in the course of a final hearing - for example, a decision about an adjournment or a ruling on evidence - does not enliven the right of review.  The reason is that such a decision does not amount to a completed exercise of the relevant power, namely the power finally to determine (subject to possible review) the claim the subject of the delegation:  see s 376(1).  But it is another thing to say that a final decision on a discrete application - for example, the grant or refusal of an application for an extension of time to institute a principal proceeding, or for summary judgment, or to strike out the proceeding as against a particular respondent - does not amount to a reviewable exercise of power.  Such an application may be interlocutory, in the sense that it does not finally resolve the controversy between the parties, but determination of the application completes the Judicial Registrar's exercise of the relevant delegated power, that is the power to decide the application.  Determination of that application may be the particular Judicial Registrar's only association with the case.  Unless the determination is reviewable at that stage, it could not be challenged at all.  It would not suffice to wait until some other Judicial Registrar has finally disposed of the case; there may be no complaint about the way the other Judicial Registrar exercised power.

 

           I turn to the second reason for discussing this topic.  Gray J said in Andrews at 443 that "the nature of a review of a Judicial Registrar's exercise of the power is such that an application for such a review cannot be regarded as a 'proceeding', for the purposes of s 347 of the Act".  But the only reason he gave for this conclusion was that stated in the following two sentences:

 

                "It is an integral part of the proceeding which is commenced by application made under s170EA of the Act.  It is properly made by notice of motion, which is to be treated in the same manner as a notice of motion seeking any other interlocutory order within the proceeding commended by the application under s170EA."

 

 

           With respect, this reason is unpersuasive.  His Honour did not explain what he meant by 'integral'.  If he meant that an application for review, when sought, is part of a larger curial contest between the parties, that is obviously correct. But the same may be said about an appeal or an application for leave to appeal or even an application by one party for the punishment of another for contempt.  The statement overlooks Northrop J's point about the word "proceeding" encompassing "a step in the proceeding as well as the action itself".  If that is so, an application for review may properly be described as a "proceeding" notwithstanding that it is part of a larger proceeding.  And Northrop J's understanding of the meaning of "proceeding" is supported by authority.  As counsel for the present appellant points out, the word "proceeding" (or "proceedings") is commonly applied to an interlocutory application, being "an integral part" of a larger proceeding.  This is made clear by the description of the term contained in par 24 of vol 37 of Halsbury's Laws of England (4th edn):

 

                "The term 'proceedings', which is sometimes used in the singular and sometimes in the plural, both in statutes and in the Rules of the Supreme Court, is frequently used both to describe an action or other cause or matter or to denote a step in an action, cause or matter, and obviously has the latter meaning in such phrases as 'proceeding in any cause or matter'.  On the other hand, when used alone, whether in the singular or in the plural, it bears the meaning of 'action' and should be construed with or as including an action."

 

 

           In s 347 the word is used in the phrase "proceeding in a matter".  In that context, applying the Halsbury's test, it includes "a step in an action, cause or matter". 

 

           English examples of the use of the word "proceeding" in that sense include The Dartford Brewery Company Limited v Moseley [1906] 1 KB 462, in which the Court of Appeal held that a writ of possession of premises was a "proceeding" for the purposes of a statutory provision referring to "the costs of and incident to all proceedings in the Supreme Court", and Smith v Howes [1922] 1 KB 590 in which an application by a client for taxation of a solicitor's bill of costs was held to fall within the description "proceedings for taxation", even though it was made in the context of a separate proceeding for recovery of costs initiated by the solicitor.

 

           Local usage of the term "proceeding" is similar to that in England.  Australian lawyers use the expression "interlocutory proceeding" to mean a proceeding within the framework of a larger action:  see, for example, Ch 5.6 of Vol 5 of The Laws of Australia.  The Service and Execution of Process Act 1992 defines the word "proceeding" to include "an interlocutory or similar proceeding" and "a proceeding heard in chambers".  Section 2 of the Judiciary Act 1903 defines the word "matter" as including "any proceeding in a Court, whether between parties or not, and also any incidental proceeding in a cause or matter".  Section 4(1) of the Evidence Act 1995 provides that the Act -

 

           "applies in relation to all proceedings in a federal court or an ACT court, including proceedings that:

 

           (a)  relate to bail; or

    

           (b)  are interlocutory proceedings or proceedings of a similar kind; or

    

           (c)  are heard in chambers; or

 

           (d)  ... relate to sentencing."

 

 

 

           Having regard to the common use of "proceeding" (or "proceedings") to refer to an application made by notice of motion during the course of a larger action between the parties, I cannot accept Gray J's conclusion at 443 that an application for review of a Judicial Registrar's decision "cannot be regarded as a 'proceeding', for the purposes of s 347 of the Act".

 

The decision of Moore J

 

           I have already summarised the reasoning that led Moore J to hold, in the present case, that he had no power to make a costs order in favour of Ms Shackley.  With respect to him, he was correct in his first reaction to the critical issue:  he did have power to make an order.  This was not because a review is a "separate proceeding" from the principal proceeding.  In one sense it is, because the principal proceeding may be disposed of without there ever being an application for review.  In another sense it is not; if a review is sought, it is because the principal proceeding has not been resolved to the satisfaction of all parties.  The review is as much a "proceeding" as an interlocutory application instigated by notice of motion or, as Moore J appreciated, an appeal.

 

           Moore J's erroneous search for separateness infected the critical part of his reasoning.  He said that s 377 "is drafted on the premise that the proceeding in which the Judicial Registrar has exercised delegated powers has a continuing existence which becomes one of substance if a review is undertaken by a Judge ...".  That may be conceded; where review is sought, the principal proceeding is not yet finally determined.  But that does not exclude the possibility that an application for review is also a "proceeding", albeit of a more limited kind, in the same way that an application for security for costs or for leave to administer interrogatories is a "proceeding" within the context of a larger "proceeding" being the principal action itself.  It is correct to say, as Moore J did, that "(t)he review forms part of the proceeding arising from the application made under s 170EA".  But it is incorrect to regard that as determinative of the issue. 

 

The four critical questions

 

           Four questions ought to have been addressed by his Honour:

     (i)        was the application for review a "proceeding" within the meaning of s 347?;

     (ii)       what was the relevant "matter"?;

     (iii) did the "matter" arise under the Industrial Relations Act?; and

     (iv)       was the application for review made in that "matter"?

 

I will deal separately with each of these questions.

 

           It will be apparent from what I have already said that I think an application for review is a "proceeding" within the usual meaning of that word.  As I have indicated, the word "proceeding" is widely used to refer, not only to a principal action (or "proceeding") between parties, but also to any subsidiary application made during the course of the principal action.  There is no reason to believe that the word is used in a different sense in s 347; indeed the words in parenthesis indicate the contrary.  If Parliament had intended that "proceeding" should be understood, in s 347, as meaning only a principal action that commenced when the Court's jurisdiction was first invoked and concluded with final judgment, it would have been absurd to say that an appeal alone might constitute a "proceeding".

 

           The second question is:  what was the relevant "matter"?  As the Full Federal Court pointed out in Thompson v Hodder, in s 347 the word "matter" takes its meaning from Chapter III of the Constitution.  A "matter" is a "single justiciable controversy", not a legal proceeding.  A "matter" is the controversy that gives rise to a legal proceeding, or perhaps several legal proceedings.  In the present case the relevant "matter" is Ms Shackley's claim that the termination of her employment contravened Division 3 of Part VIA of the Act and was therefore unlawful.

 

           As the controversy arose out of a claim of contravention of the Act, it is evident, in relation to the third question, that the "matter" arose under the Industrial Relations Act.  The principal proceeding was a proceeding "in" that matter.  So were each of the subsidiary proceedings that arose in the course of litigation of the principal proceeding.  The application for review was one of those subsidiary proceedings.  It arose because of the club's unwillingness to accept the Judicial Registrar's decision as a resolution of the "matter".

 

           Once it is accepted that a single controversy, or "matter", may give rise to a multiplicity of proceedings, some of which may overlap, there is no difficulty in treating a review application as a "proceeding ... in a matter arising under (the) Act", within the meaning of s 347.

 

Conclusion

 

           In my respectful opinion, Moore J erred in concluding that the club's review application was not a "proceeding" in a "matter" arising under the Act.  He should have held that it fell within that description and gone on to determine whether the review application was instituted vexatiously or without reasonable cause.  As his Honour did not do this, the case should be remitted to him for that purpose.

 

           I would allow the appeal and set aside the decision of Moore J refusing Ms Shackley's application for costs.  In place of that decision, I would order that the application be remitted to his Honour for further determination.

 

I certify that this and the preceding twenty-three (23) pages are a true copy of the Reasons for Judgment of the Honourable Chief Justice Wilcox.

 

 

Associate:

 

Dated:          16 December 1996

 

                         APPEARANCES

 

Solicitors for the Appellat:         Scott Shiels & Glover

 

Solicitors for the Respondent:  Bernard Collaery & Associates

 

The matter was dealt with by

way of written submissions

filed by the parties.

IN THE INDUSTRIAL RELATIONS COURT)

OF AUSTRALIA                     )  No. ACTI 1012 of 1996

AUSTRALIAN CAPITAL TERRITORY     )

DISTRICT REGISTRY                )

 

 

 

     On appeal against a single judge of the Industrial

                Relations Court of Australia

 

 

 

                           BETWEEN:  JANICE SHACKLEY

 

                                           Appellant

 

                           AND:      THE AUSTRALIAN CROATION

                                  CLUB LIMITED

 

                                           Respondent

 

 

 

BEFORE:    WILCOX CJ, Von DOUSSA & NORTH JJ

 

PLACE :    SYDNEY

 

DATE  :    17 DECEMBER 1996

 

 

 

                    REASONS FOR JUDGMENT

 

I have had the advantage of reading the judgment prepared by the Chief Justice.  I agree with the orders he proposes, and with the reasons for judgment which he has expressed.

                                I certify that this and the

                                preceding pages are a true

                                copy of the Reasons for

                                Judgment of Justice von Doussa

                                Associate:

                                Dated:     17 December 1996

 

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITDISTRICT REGISTRY

                                  No ACTI.1012 of 1996

 

ON APPEAL AGAINST A SINGLE JUDGE OF THE

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

 

B E T W E E N :

 

JANICE SHACKLEY

                                                     Appellant

 

AND

 

THE AUSTRALIAN CROATIAN CLUB LIMITED

Respondent

 

 

BEFORE:        Wilcox CJ, von Doussa and North JJ

PLACE:         Sydney

DATE:          17 December 1996

    

    

REASONS FOR JUDGMENT

 

NORTH J:   The background to this appeal and the relevant statutory provisions are set out in the judgment of the Chief Justice, and it is unnecessary for me to repeat them.

 

     The question raised by the appeal is whether a review by a Judge of a decision of a Judicial Registrar is “a proceeding in a matter” within the meaning of s 347 of the Industrial Relations Act 1988 (the Act). If it is, a Judge is empowered by the section to order costs against the applicant if the review was instituted vexatiously or without reasonable cause. The decision of the Judicial Registrar in this case determined an application brought by the appellant under s 170EA of the Act alleging that her employment was terminated unlawfully. That is to say, the Judicial Registrar determined the merits of the application rather than an interlocutory matter raised in relation to the application.

 

     Section 347(1) expressly includes an appeal as a “proceeding in a matter”, thus making it plain that “proceeding” is not used in the sense of the entirety of the action. The two main authorities in this Court accept that there may be more than one proceeding in a matter constituted by an unlawful termination application: Foxcroft v The Ink Group Pty Ltd (1994) 1 IRCR 215 at 219, and Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437 at 441.

 

     To determine whether the review in this case is “a proceeding in a matter”, it is necessary to isolate some of the practical and procedural features of the review process. Needless to say, a review is heard by a Judge, the parties or their representatives appear in Court, evidence is given and arguments presented, and reasons for decision are given. Importantly, the issue before the Court is whether the employment of the applicant was unlawfully terminated. The Court considers the merits of the application. Were it not that this process occurs after an initial hearing before the Judicial Registrar, it would be described simply as the trial of the application. As such, it would certainly be a proceeding in the matter. Indeed, nothing fits the description of a “proceeding in a matter” as well as the hearing and determination of the merits of a case in the first instance.

 

     There are also, however, conceptual aspects of the review process which are relevant to this matter. These were examined by the Full Court in Wyndham Lodge Nursing Home v Reader (No 2) (1996) 65 IR 253, in the context of the nature and proper conduct of a review. At 255, the Court adopted the view of Northrop J in Keating v Teico Investments Pty Ltd (1994) 57 IR 339 that:

 

“On review, the Court is required to look into the whole matter as part of its original jurisdiction”.

 

It also adopted, at 255, the following statement of Moore J in Association of Professional Engineers, Scientists & Managers (Aust) v Deniliquin Council (1995) 58 IR 275:

 

“However, it is plain from Harris and Brandy that the maintenance of the integrity of the separation of powers arising from the application of the provisions of Ch III of the Constitution requires s 377 to be construed so as to treat the review as a hearing de novo. In such a hearing the parties are not bound to or limited by the evidence before the judicial registrar and may adduce evidence that was not put to the judicial registrar because either a party neglected to call it or it concerns events occurring after the hearing. The judge must decide the matter by reference to evidence led in the review and independently of the decision of the judicial registrar.”

 

It further adopted, at 256, the view of Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1 that:

 

“The relevant constitutional principle means no more than that, on review, the parties are entitled to have the case reviewed by the judge, without any limitation imposed by the conduct of the case before the judicial registrar or the judicial registrar’s findings. The parties have the right to call such additional evidence as they wish, subject to relevance and other usual canons of admissibility. The judge must decide the relevant facts for himself or herself, and not simply adopt the findings of the judicial registrar.”

 

And finally, at 257-8, the Court adopted the view of Gray J in Andrews that:

 

“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 s 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.”

 

     Consistent with the approach of the Full Court in Reader, it can properly be said that the decision on review replaces the decision of the Judicial Registrar. The Judicial Registrar exercises the power conferred on the Judge and delegated to the Judicial Registrar. For constitutional reasons, the parties are entitled to have the Judge exercise the power him or herself. In doing so, the Judge may hear afresh the trial previously conducted before the Judicial Registrar. When the Judge makes the decision on review, the decision determines the application in place of the determination previously made by the Judicial Registrar.

 

     The decision of the Judicial Registrar and the decision on a review are both exercises of original jurisdiction and, indeed, the exercise of the same jurisdiction, albeit that the Judicial Registrar exercises that jurisdiction by delegated authority. The starting point for a review is the application made, not the decision of the Judicial Registrar. Where a review is instituted, the power to determine the merits of the application resides with the Judge. The Judge hearing the review is not required to consider whether the decision of the Judicial Registrar was right or wrong. Thus, the prior act of determination of the application is overtaken by events.

 

     The decision of the Judicial Registrar and the decision on review are both part of the determination of the application at first instance. It is in this sense that Gray J, in Andrews, at 443, referred to the review as “an integral part of the proceeding which is commenced by application made under s 170EA of the Act”. In contrast, the starting point of an appeal is the decision appealed from rather than the original application. In its exercise of appellate jurisdiction, the Appeal Court must determine whether the decision was right or wrong. The appeal decision displaces the original decision, not as a first step in the determination of the original application, but as a second step in the process of determination.

 

     I agree with Gray J in Andrews that there are conceptual differences between a review and an appeal. These differences stand in the way of the reasoning that, if an appeal is a proceeding in a matter, a review is also a proceeding in a matter. However, in my view, the conceptual differences are not determinative of the present question. Whatever the outer limits of the meaning of the expression “proceeding in a matter”, it certainly encompasses an event which is in the nature of a trial of the action. Thus, it refers to the initial hearing before a Judicial Registrar if no review is brought. In my view, the close similarity between the review process and the process of trial before the Judicial Registrar leads to the conclusion that both are proceedings in the matter for the purpose of s 347.

 

     The meaning of the phrase “proceedings in a matter” is also influenced by the context in which the phrase appears. The context is the power to award costs. Costs are incurred at both the stage of the hearing before the Judicial Registrar and at  the stage of the review. While both stages conceptually constitute the first step in dealing with the merits of the application, the conceptual relationship between each of these stages is less important than the fact that the expression is used in the context of the grant of power to award costs. That power is more directed to the practical realities of the process, than to the conceptual issues relating to the relationship between the hearing before the Judicial Registrar and the hearing on review. There is insufficient distinction between the hearing before a Judicial Registrar and the hearing on review in respect of the power to award costs to conclude that the former is a proceeding in a matter and the latter is not. Section 347 deals with both in the same way.

 

     Certain anomalies and inconsistencies arise if a review of a decision of a Judicial Registrar on the merits of an unlawful termination application is not a proceeding under s 347(1).

 

     If an employee brings an application which is rejected by the Judicial Registrar, and then brings a review which is rejected by the Judge, the employer may seek costs under s 347 on the basis that the application was instituted by the employee vexatiously or without reasonable cause. The Judge hearing the review may order that the costs of both the hearing before the Judicial Registrar and the costs of the review are to be paid by the employee, if the Judge is satisfied that the application was instituted vexatiously or without reasonable cause. This follows from the view that the hearing before the Judicial Registrar and the review together constitute a proceeding, and that such proceeding is instituted by the employee filing the application.

 

     If an employee brings an application which succeeds before the Judicial Registrar, and then the employer brings a review which fails, and which was instituted vexatiously and without reasonable cause, the employee cannot obtain an order for costs of the review under s 347. Again, this follows from the view that the review is not a proceeding.

 

     In the first case the successful employer can obtain costs of the review from the employee. In the second case the successful employee cannot obtain costs of the review from the employer. The section would thus enable the Court to order an employee who instituted a review vexatiously and without reasonable cause to pay the employer’s costs, but would not enable the Court to order an employer who instituted a review vexatiously and without reasonable cause to pay the employee’s costs of the review. The purpose of s 347(1) is to give some protection to respondents to litigation instituted vexatiously and without reasonable cause. The protection is necessary for any party subjected to such litigation. To grant the protection to employer parties to reviews but not to employee parties to reviews would be an unfair distinction in treatment. There is no reason to suppose that parliament intended such unfairness by conferring the protection on employer parties to a review but not on employee parties to a review.

 

     An alternative view is that, although a review is not a proceeding, the hearing before a Judicial Registrar is a proceeding. This approach would mean that s 347 does not apply to the hearing before the Judge, but does apply to the hearing before the Judicial Registrar. On this approach, costs could never be awarded in respect of a review. However, this view also produces anomalies. An employer who is successful before a Judicial Registrar may be awarded costs of the hearing before the Judicial Registrar on the ground that the application was instituted vexatiously and without reasonable cause. The employee may then commence a review vexatiously and without reasonable cause. The Judge hearing the review could not order the employee to pay the costs of the review, even though the hearings before the Judicial Registrar and the Judge were practically the same in respect of the costs incurred. Similarly, as may be the situation in the present case, an employee could be successful in the hearing before the Judicial Registrar but still have to defend a review commenced vexatiously and without reasonable cause by the employer. If an order for costs was not available in respect of the review, the employee would have incurred the costs of two hearings but be entitled to the costs of one hearing only. The need for protection against proceedings instituted vexatiously or without reasonable cause exists equally in respect of the hearing before the Judicial Registrar and the hearing before the Judge.

 

     In the decision appealed from, the trial Judge held that the language of s 377(1), which confers the right to bring a review, indicated that the “proceedings” there referred to described the entirety of the events commencing with an unlawful termination application and concluding with the decision on a review. His Honour then apparently reasoned that if the entirety of the events constituted the proceedings, the review on its own did not constitute a proceeding. The relevant passages in Moore J’s decision have already been set out in the judgment of the Chief Justice. Section 377(1) 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.”

 

Even if the trial judge is correct in his interpretation of s 377, it is not necessarily determinative of the question in this appeal. The word “proceedings” in s 377 may refer to the global proceedings encompassing the hearing before the Judicial Registrar, the hearing on review before the Judge and, even, an appeal. This interpretation of “proceedings” may be entirely appropriate to describe the conceptual features of a review. To describe a review as a “proceeding” for the purpose of an order for costs does not deny or derogate from the conceptual aspects of a review as part of the “proceedings” consisting of both hearings before the Judicial Registrar and the Judge. It merely reflects other more practical aspects of its character as discussed earlier. The Act may use the word “proceedings” differently in s 347 and s 377. Section 347 is found in Part XII of the Act and s 377 is found in Part XIV, Division 3 of the Act. The sections are thus located in different parts of the Act. Further, they deal with different subjects. Part XIV, Division 3 is concerned with Judicial Registrars and s 377, in particular, with reviews of decisions of Judicial Registrars. Section 347 is concerned with the general question of costs. It is not linked to the question of costs of unlawful termination proceedings.

 

     If it were necessary to determine the meaning of the word “proceedings” in s 377(1), my view would be that it refers to the hearing before the Judicial Registrar. The word is used in two places. First, it is used to describe a person entitled to bring a review, namely, “a party to proceedings”. As the review is concerned with a challenge to the decision of the Judicial Registrar, that phrase indicates that the person entitled to bring a review is one who played a part in the process to be challenged, namely, the events before the Judicial Registrar. Second, the word “proceedings” is used to identify the subject of the review. Again, “proceedings” in this context means the events which occurred before the Judicial Registrar. Thus, s 377(1) describes the events which occurred before the Judicial Registrar as proceedings. Reference to the language of s 377(1) does not advance the question of whether the review is also a proceeding for the purposes of s 347.

 

     Two other issues have arisen in the cases dealing with s 347. The Court has considered whether a party has, under s 377(1), the right to review an interlocutory decision of a Judicial Registrar, and whether the Court has power under s 347 to make orders for costs in interlocutory applications which are brought vexatiously or without reasonable cause: Foxcroft, at 217 and 219, and Andrews, at 442 and 443. As the present case does not involve an interlocutory decision of the Judicial Registrar, these questions do not arise. The appeal may be resolved without reference to those issues. Thus, a decision of this Full Court will not be a binding authority on the questions. The issues are not free from difficulty or controversy. They have not been addressed in submissions which, in any event, were exclusively in writing. Further, in the light of s 170EHA in relation to unlawful termination applications, it is unlikely that the costs question will arise. In all these circumstances, I prefer to express no view on the costs question and merely to record that I adhere to the view expressed in Spencer v Baseball Queensland Inc (15 July 1996, not yet reported) that s 377 does not give a party a right to review a decision of a Judicial Registrar in an interlocutory matter. In particular, having regard to the Chief Justice’s comments, there is nothing surprising or unfair in the result that a party to an unlawful termination application cannot review an interlocutory decision in relation to venue until the conclusion of the hearing of the application by the Judicial Registrar. At this point, the parties have a right to a repeat of the exercise of original jurisdiction. This unusual situation arises from constitutional requirements. Given this unusual ability for parties to have two bites of the cherry, it is understandable that the extent of the first bite might be limited to some degree. The limitation concerns interlocutory matters which, because of their procedural nature, even if wrongly decided are not likely to be critical to the proper disposition of the application. In a few extreme cases, a wrong decision by a Judicial Registrar in an interlocutory matter may prejudice the proper disposition of the hearing before the Judicial Registrar. The Act gives a remedy in such a case, which is not confined  to an immediate challenge to the interlocutory decision but is a right to review the result of the entire hearing before the Judicial Registrar. Thus, even if the inability to challenge an interlocutory order in respect of venue has the extreme effect of preventing a party from attending before the Judicial Registrar, that party can institute a review thereafter and re‑argue the question of venue before the Judge in relation to the review.

 

     This approach accords with the approach of Moore J in Hitchcock v Warner Bros Movie World (1995) 130 ALR 337, at 342:

 

     “I do not consider that parliament intended that s.377 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 s.376(1)(a) and (b).  .... If s.377 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.”

 

The alternative would be that parties would be able to review every interlocutory decision of a Judicial Registrar. Jurisdiction exercised by the Judicial Registrars is predominantly concerned with claims for reinstatement. In their nature, these must be dealt with quickly in order that justice be done. The applicants tend to have limited resources, so that litigation in the jurisdiction must be as inexpensive as possible. If the Act permitted reviews of interlocutory decisions in the course of the proceedings before the Judicial Registrar, there would be the possibility of delay and expense contrary to the purpose of the provisions. Gray J expressed a similar view in Andrews, at 442, as follows:

 

“Thus, it is only when the judicial registrar has made a final order that review can be sought.  If this were not the case trials before judicial registrars could be interrupted constantly by applications to review rulings on the admissibility of evidence and every interlocutory decision of a judicial registrar could be the subject of a separate application for review.  That cannot have been the intention of Parliament.”

 

     In the result, I agree that the appeal should be allowed, the decision refusing the application for costs be set aside, and that the application for costs be remitted to the trial Judge for further determination.

 

 

I certify that this and the preceding

twelve (12) pages are a true copy of the reasons

for judgment of his Honour Justice North.

 

Associate:

Dated:          11 December 1996

 

APPEARANCES

Solicitors for the appellant:   Scott Sheils & Glover

Solicitors for the respondent:  Bernard Collaery & Associates

 

The matter was dealt with by way

of written submissions filed by

the parties.