Allerup v Heka Ply Ltd t/a Brisbane Dental Group [1999] ICQ 33 (1999) 161 QGIG 268

,I ! I 268 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30 July, 1999 ##########-#######################################1/###############################lt#####-##############ffl#############-###### QUEENSLAND INDUSTRLAL COURT Workplace Relmio11s Act }997 - s. 360(2) - appeal from decision of indusuial commissi on Vibe Allerup AND Heka Ply Ltd Ua Brisbane Dental Group (=-:o. C9 of 1999) JUSTICE WILLIAMS, PRESIDENT 20 July 1999 I d - 1L , _ 219(4) o f the Workplace Relations Act /997 _ take action within six rnonlhs - must take some formal step having lhe effect of moving n usu,a aw s. · d r ·the application towards 1h e re li ef sought - no power to extend time or resurrect lapse app 1ca11011. HJDGMENT This is an appeal from a decision of Chief Commissioner Hall declaring that the appella nt's applicatio n for reinstatement had lapsed by virtue of s. 219(4) of the Workplace Relations Act 1997. Consequent upon her dismissal from her employmenc with the respondent Lhe appellant lodged an application for relief, including reins�1e�1enl, ':"ith tl:eCommissio n on 18 Feb(llary l998: s. 218. Pursuant 10 s. 219(1) a condliation conference was held on _13 Ma rch 1998 presided over_ Y _omrru,s1oncr ou•oure The court fil e beaxs an en dorsement, initialled by Commissioner Bougoure, recorduig that he in formed the part1es t�at he was sat1sf1ed that all !asinabl� attempts 10 seuJe the matter by c onciliation were unsuccessful and of che possible consequences of further proce edrng, mcludmg the fact that if no action was ta ken within six months t he application would lapse. Three days later, o n J 6 March J 998, the appellam' s solicitor sent the following letter to the respondent's the n solicitors: " l re fe r to the conference on Friday 13 March J 998 and note 1ha1 you co ntend that there are seve ra l bases on which you submit that our client does no t have a claim against your clienl. We req uire y ou set forth exhaustively all of those grounds and particulars of each of th ose grounds. F rth we require your client to make disc overy all of (sic) relevant documents. We particularly wish to inspe ct the employment ,:cor ::•including those records which s how t he employment o f the spou ses of members of the Br isbane Den tal Pra cuce. We look forward to receiving this information and documents within 1he next 7 days. ". Th th t Jetter Nothing further was done until on I Dece mb er 1998 the appellant's solicitors req uested that th e mattt:r be placed on ere was no response to a - - r - h d I d ursua 11 to s 219(4) a call-over list. W hen the matter was called over on J 6 December J 998 the res_ pondent objected that the app 1cat1on a aps e P 1 · Chief Commissioner Hall heard argume nt on that issue and declared that the apphcauon had laps ed. 30 July, I 999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 269 Section 219(4) of the Act relevantly provides: "The application lapses if lhe applicant has not, within six months after the applicant ha s been informed by the co mmission under subsection (3)(a) ta ken aoy action in relation to the applicati on ... ". Subsection (3) obliges t he Commissioner conducting the conciliation conference 1.0 inform lhe parties of the fact thac he is s atisfied all reasonable attempts to settle the matter by conciliati on are, or are likely to be, unsuccessful and of the possible con sequ ences of further proceeding on the application. He may make s ome further recommendations if he considers them appr opriate. Three issues were ra ised by the appellant before Chief Commissioner Hall and again on the heaxing of this appeal. They can be short!y stated as follows: (I) Has the Commissi on power to extend the six months period provided for in s. 219(4)? (2) Was there evid ence that Commissioner Bougoure had complied with s. 219(3)? (3) Did the letter of 16 March J 998 constitute the taking of any action i n relation to the application for purposes of s. 219(4)? The right to apply for reinstatement is a right created by statute and conferred by the Statute on a pe rs on who establishes unfair dismissal. As such the right is regulated by the pro visions of the sta tute. Reinstatement is obviously a special remedy which gives rise to ill own peculiar problems. If there is to be a satisfactory future relati onship between reinstated employ ee and employer it is generally desirable that the reinstatement be pe.fected quickly and before the matters in dispute between Lhe parties constitute an insurmountable obstacle to future good relations. Further, i t is important that reinstatement be implemented before the employer has reorgan ised the business (for example, by taking on a replacement employee) which would create fresh pro blems and perhaps make reinstatement in appropriate. Against that background it is understandable that Lhe legislature has imposed a tight 6me frame on the prosecution of an application for reinStatement. The six month limitation period imposed by s. 219(4) is a statutory limitation which could only be extended by the Commission (or the Court) if such power was expressly c on ferred by the Statute. There is no specific power 10 do so conferred by s. 219. It is interesting to contrast s . 219 with s. 218 of the Act which deals with the making of an applicati on to remedy unlawful dismissal. Subsection 218(3) provides Lha t such an applic ati on must be made within 21 days after the dismissal takes effect or within "a furthe r period the Commission allows on an application .made during or after Lhe 2 1 days". That is an instance of the statute conferring a specific power on the Commission to extend a .;tatutory time limit. The contra st between s. 218 an d s . 219 is stark as observed by the Chief Commissioner. The solicitor for the appella nt submitted that s. 289 of the Act empowered the cow:t to grant an extensio n of time or make an order restoring the matter to the call- over list. In my view there is no substance in tha t submission. Thal provision merely pr ovid es that the Commission may "give directions about the hearing of a matter within the Commission's jurisdiction". That does not confer a power to extend a limitation provision fixed by in th e statute itself, nor does it empower the Commission to restore a lapsed application. Duong argument I was not referred to s. 344(j) o f the Act . That section is considered in Knowles v Loga n Bea udeserl Di.strict Health Service J 60 QGIG 156. As therein pointed out, even ifs. 344(j) gave the Commission p owe r to extend lhe time period in que.;tion (which is to be do ubted), the Commission had no power to resurrect an application which had lapsed by operation of the statute. I am therefore of the view that the Commissi on had no power to extend the time so as to revive the application or otherwise resurre ct it. It was then submitted by the solicitor for the appellant that there was no evidence tha t Conunissioner Bougoure had complied with s . 219(3). It was argued that all that was said on 13 March 1998 was caught by the "without prtjudice" protection which applied to the c onciliation conference. I would accept that Com.missioner Bougoure followed the usual practice of informing the parties that. Lhe concilia tion conference was "without prejudice". That means that reli ance could not be pl aced in subsequent proceedings on communica tions made at the c onference between the parties with a view to arriving at a s ettlement. But in my view the "without prejudice" protection could not apply to statements made by Commissioner B ougoure consequent upon his being satisfied that the conciliation process wa s un likely to achieve a negotiated settlement. The sta tute obliges the Commissioner c onducting the con ference to makesuch a statement and there is no need for there to be a significant time lapse between the conclu sion o f the conference and the making of the statement nor for some formula to be used by the Commissioner to make his statement free of Lhe ·•without prejudice" privil ege. Cieaxly the sutemen1 of the Commissioner is not a communication between the pa rties witll a view to arriving at a negotiated settlement. Thus it was appropriate for Chief Commissioner Hall t o conclude that the stateme nt by Commissioner Bougour e on 13 Maxch J 998 complied with the requirements of s. 219(3) and in conse quence the six month period provided for in s. 219(4) then commenc ed. The solicit or for the appellant conceded that if the statements by Commissioner Bougoure on 13 Marc h were not "without prtjudice" there was no objection to Chief Commissioner Hall ha ving regard to th e notation by Commissioner Bougoure on the court file; it constituted part of the court- record and evidenced complianc-e with the statutory re quirements. The rema.imng questi on is whether or not t he sen ding of the leuer of 16 March constituted action taken in relatio n to the application for purposes of s. 219(4). The representatives of each party submitted that what was required w as s ome action taken ..with the view of continuing the litigation". In Spincer v Watts (1889) 23 QBD 350 Lindley LJ was concerned with a rule of court which co ntained the words "before ta.king any other proceeding in the action". At 353 his Lo rdship stated that those words me ant "taking any proceeding with the view of continuing the litiga tion with the person aga inst whom the proceeding is ta ken". Master Lee QC in Leach v Jntenzational Portion Foods Pry Ltd (1984) 2 Qd R 152 and the Full Court in Citicorp Australia Limired v Metropoliran Public Abattoir Board (1992) I Qd R 592 adopted that expression as being rele vant to a consideration whether or not a ··proceeding" had been taken for purposes of 0.90 r.9 of the Rules of the Supreme Court. Speaking of the same rule Stable Jin Kaats v Caelers (1966) Qd R 482, 499, used the words ..some step taken toward the judgment or relief sought in the action". Generally in the context of rules such as those one is looking for something ••in the nature of a formal step in the prosecution of an ac tion"; Mundy v Bzmerly Co (1932) 102 L J Ch 23 at 26 appro ved and applied by McPherson SPJin Citicorp. Whilst those authorities are not binding as to the proper co nStrUction of the phra se used in s. 219(4) they axe of assistance. What the provision r equires is tha t the appli�mt must take some forma l step having Lhe effee1 of moving the application toward the relief sought. Where procedure is regulated by rules of court which re quire certain steps to be taken before trial then taking any such step, and perhaps ini6a ting the raking of that step, wiU be seen as progressing the actio n in the r equired way. In the context o f the Rules of the Supreme Court something more than informal letters between the solicit ors for t he parties will be required. The position is not as clear in jurisdictions such as the Industrial Cornmission wh ere there are no detailed procedural rules, but rather the Registrar or a Commissioner gives directions as to the conduct of the proceeding: s. 289. The normal practice in Lhe Industrial Commission is that the applicant for relief pur suant to s. 218 will request that the matter be placed on the call-over list. At the call-over direction s will then be given as to the future conduct of the proceeding; direction s will refer to matters such as the resp onse of the ::ODMA\GRPWJSE\QIRC-DOM.IRO-POJ .GENERALI :2921 I .I QGIG 3on199 -- 1 of 2 -- II I 270 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 30July, 1999 employer (defence), production and inspectio n of relevant documents, and perhaps the exchange of other documentary material. Once those ITh'l.tters have been complied with (and compliance ca n be monitored by the Commission) a hearing date will be set at a call-over. It is clear that absent such a directions order ther e is no obligatio n on the employer to lodg e any formal response to the application, lhere is no right in either party to demand particulars of any allegation, and there i s no right in either party to discovery and inspection of documents. Parties are of course encouraged to co-operat e in order to expedite 1he preparation of a maner for hearing, and that may wel l involve making informal arrangements with respect to some of lhe matters referred to above. It may well be, as Chief Commissioner Hall observed, tha.t if "within a six months period of the s. 219(4) communication, discovery and inspection had been requested and had occurred, J would find it difficult to deny that th e applicant had taken ·action', though no step required by the rules had been taken." That is not the factual situation here and a final determination as to whe.ther or not such would constitute taking ''action" for purposes of s. 219(4) should be left to another day. What is clear is that an applicant for relief pursuant to s . 218 cannot by his own motion impose an obligation on the other side. Merely sending a letter demanding particulars or discovery does not impose any obligation on the defendant and does nol progress the application towards final determination. The conclusion is inescapable that the letter in question here did not progress the application. The position iJI law was precisely the same after the Jetter was written and senl as i1 was immediately before. The oblig ation on an applicant is not onerous. A letter to the Reg,istrar requesting that the applicatio n be placed on the call-over list for direct.ions would suffice. Even if because of some administrative problem the applica1ion was not placed on the call-over the sending of such a lett er would of itself satisfy the requirements of s. 219(4). It follows thal the appeal should be disnussed. Dated this twentieth day of July, 1999. G. WILLIAMS, President. Rei.eased: 20 July 1999 Appearances:- Mr T. Puryer (of Puryer & Co Solicitors) for the Appellant Mr W. Hickey (of Macrossans Lawyers) for the Respondent. ################################ffl#######/1######################################/t##lt#########################ffl########## 30 July, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 271 -- 2 of 2 --