DECISION NO:95/97

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - no point of principle

Industrial Relations Act 1988 (Cth), ss170DB, 377, 430

Lynch v St Vincents Private Hospital

NI  1689R of 1996


Before:                       MADGWICK J
Place:                         SYDNEY
Date:                           12 MARCH 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI  1689R of 1996

BETWEEN:

AND

BEFORE:     MADGWICK J
PLACE:         SYDNEY
DATE:            12 MARCH 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.          The application be dismissed.

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
NEW SOUTH WALES DISTRICT REGISTRY

NI  1689R of 1996

BETWEEN:

AND

BEFORE:     MADGWICK J
PLACE:         SYDNEY
DATE:            12 MARCH 1997

REASONS FOR DECISION

(Revised from transcript)

In this matter, the applicant seeks a review of a decision of a Judicial Registrar, who dismissed her application. He did so succinctly in an ex tempore judgment in the following terms:

"It is the respondent's case that this court has no jurisdiction toentertain the applicant's claim as the applicant was given writtennotice of termination from her employment on 4 October 1984. 

The applicant, in support of her extension of time to bring this claimstates that her employer has wilfully concealed relevant evidencefrom the Industrial Relations Commission and has therebyimproperly gained a judgment and financial benefit. By this I understand that the applicant means the New South Wales IndustrialCommission. The applicant also says she has suffered some miscarriage of justice concerning an order for discovery made by thecommission.

In order for me to consider the applicant's claim it will benecessary for the Industrial Relations Reform Act to haveretrospective operation as the provisions of the Act came intooperation on the 30th March 1994.

The situation was considered by Wilcox CJ in Siagian v Sanel PtyLimited and Gray J in A.P.E.S.M.A. v Skilled Engineering, and on thebasis of these decisions I must dismiss the application for unfairtermination.

I make no order for costs."

Before me, Ms Lynch has elaborated the injustice which she feels she hassuffered. She has drawn my attention to the associated jurisdiction of thiscourt. She has also drawn my attention to the necessity to give this remedialAct a purposive construction. She has referred to the wide powers of thecourt to do justice in a matter properly before it, and has pointed outthat she only recently discovered what she says was the wilful concealing of evidence. She seeks to attach the associated or accrued jurisdictionto a claim that section 170DB of the Act was breached, and therefore asserts that the entire claim comes within the associated jurisdiction of the court.

There is no doubt that I have jurisdiction to review the Judicial Registrar's decision and I do so review it. However, none of the matters raised by Ms Lynch indicates any error in the approach of the Judicial Registrar and I agree with him that this case is quite hopeless. There is nothing to indicate that the Act has a retrospective operation such that it would catch allegedly unlawful terminations of employment in 1984, nor does it provide a remedy for notice of termination of employment in 1984 which, judged by the standards of the 1994 Act, might be inadequate. There is therefore no matter within the primary jurisdiction of the court to which any otherwise justiciable plaint could attach. Consequently, the court has no jurisdiction to entertain the applicant’s claims.

I confirm the order of the judicial registrar that the proceedings be dismissed.

I certify that the preceding 2 pages are a true copy of the reasons for decision of Madgwick J.



Associate:     
Dated:             12 March 1997




APPEARANCES