WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES AUSSIE ONLINE LIMITED (ACN 004 160 927)

APPELLANT

 -v-

 JOHN LANE

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  CHIEF COMMISSIONER W S COLEMAN

  COMMISSIONER P E SCOTT

DELIVERED FRIDAY, 10 AUGUST 2001

FILE NO/S FBA 36 OF 2001

CITATION NO. 2001 WAIRC 03497

_______________________________________________________________________________

Decision  Appeal upheld and decision at first instance quashed.

Appearances

Appellant   Mr S K Shepherd (of Counsel), by leave

Respondent   Mr M L Bennett (of Counsel), by leave, and with him,

    Ms L Boardley (of Counsel), by leave

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

1                 These are the unanimous reasons for decision of the Full Bench.

2                 This is an appeal against a decision of the Commission, constituted by a single Commissioner, given on 17 May 2001, and orders made on 8 June 2001 in matters No 1039 of 2000 and No 440 of 2001.  The appeal purports to be brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).

3                 The order was perfected by its depositing in the office of the Registrar on 11 June 2001 and which, in its full terms, read as follows:-

  “WHEREAS this is an application made pursuant to section 27(1)(v) of the Industrial Relations Act 1979 (the Act) seeking to set aside the order discontinuing matter number 1039 of 2000; and

  WHEREAS this matter came on for conference pursuant to section 32 of the Act on 9 and 23 April 2001; and

  WHEREAS the matter was unable to be resolved and was referred for hearing and determination; and

  WHEREAS the Commission finds that the order of 16 February 2001 in matter number 1039 of 2000 was made in error;

  NOW THEREFORE, the Commission, pursuant to powers under section 27(1)(m) of the Act and having regard to equity, good conscience and the substantial merits of the matter hereby orders –

  THAT the order of 16 February 2001 in matter number 1039 of 2000 be revoked.”

GROUNDS OF APPEAL

4                 It is against the decision in matter No 440 of 2001 that the appellant now appeals on the following grounds:-

  “1 The Commission erred in law in that the order of the Commission to revoke the order of the Commission made on 16 February 2001 in matter number 1039 of 2000 (“the Revocation Order”) was beyond the jurisdiction of this Commission as granted by the Industrial Relations Act 1979 (“the Act”).

       Particulars

   (a) The jurisdiction of the Commission is granted by the express terms of the Act.

   (b) Section 26(1)(a) of the Act is not a provision which vests the Commission with jurisdiction - it is not a source of jurisdiction.  That provision controls the manner in which the Commission is to exercise its jurisdiction, once granted.

   (b) The Commission has no jurisdiction to grant orders in a separate application (No. 440 of 2001) where those orders purport to have an effect on an earlier application (No. 1039 of 2000), without an express grant of jurisdiction.

   (c) The Revocation Order ought to have been sought through the appellate procedure in the Act.

  2 The Commission erred in law and in fact in finding that it had power to make the Revocation Order.

       Particulars

   (a) There is no power in the Act which supports the making of the Revocation Order.

   (b) The power in section 27(1)(m) of the Act did not support the making of the Revocation Order.

   (c) Upon the making of the order on 16 February 2001 the Commission was functus officio with respect to the respondent’s claim for unfair dismissal.

   (d) The slip rule has no application to the exercise by the Commission of its powers under the Act and, in any event, that rule had no application to the circumstances of the present case.

  3 The Commission erred in law and in fact in exercising its discretion to make the Revocation Order.

       Particulars

   (a) No evidence was led by the respondent as to the circumstances whereby the respondent’s solicitors failed to respond to the Commission’s letter of 30 January 2001.  There was thus no probative evidence to support the exercise of the Commission’s discretion.

                     (b)    The Commission failed to give any or any sufficient weight to the fact that the discontinuance of matter number 1039 of 2001 (sic) was caused by the respondent’s solicitors.

   (c)    The Commission failed to give any or any sufficient weight to the fact that the discontinuance of matter number 1039 of 2001 (sic) was not caused or contributed to in any way by the appellant or its solicitors.”

AMENDED NOTICE OF OBJECTION

5                 There purports to be filed an Amended Notice of Objection on behalf of the respondent, having been filed on 17 July 2001.  The objection, formal parts omitted, reads as follows:-

  “Name of Objector:          John Franklyn Lane

  The abovenamed objector hereby objects to the whole of the abovementioned application.

  The grounds of objection are:

  1. the notice of appeal has not been validly instituted;

  2. the appeal is based on the decision of Commissioner Wood which constitutes a finding, as defined in Section 7 of the Industrial Relations Act 1979 (“the Act”); and

  3. section 49(2A) (sic) of the Act provides that an appeal does not lie under Section 49 from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie;

  4. there is no public interest raised by the appeal;

  5. the Commission had jurisdiction pursuant to section 23 of the Act to enquire into and deal with any industrial matter.  Application no. 440 of 2001 was an industrial matter brought before the Commission, in that, it was a matter affecting or relating to the work, privileges and rights or duties of the Applicant.  Section 27(l)(m) of the Act in particular by enabling the correction of an “error” provided sufficient power for the Commissioner’s decision to revoke the discontinuance.

  6. there was no appealable error made by Commissioner Wood in the exercise of his discretion to revoke his order discontinuing application no. 1039 of 2000.

  The objector is or is likely to be affected by the application in the following manner, namely:

  1. The objector has suffered financial hardship because of the dismissal.  The objector should not be deprived of his right to seek relief and compensation in relation to that dismissal.

  2. The objector will incur further costs in preparing for the appeal and being represented at the appeal.

  3. The objector will be deprived of the fruits of his litigation in that there may be a further delay in the hearing and final determination of the objector’s industrial matter before the Commission.

  4. The objector’s application for an order pursuant to Section 29 of the Industrial Relations Act 1979 was lodged on 7 July 2000 and is still to be heard.  To further delay the hearing would accentuate the hardship experienced by the objector and in all the circumstances would be unjust.

  Additional Matters

  1. In the event that the Appellant is successful in its appeal on the grounds that the Commissioner did not have the requisite jurisdiction to revoke the order and as a consequence application no. 440 of 2001 is dismissed, the objector seeks an order for an extension of time to lodge an appeal against the decision of Commissioner Wood made on 15 February 2001 in application no. 1039 of 2000 and for that appeal to be heard at the same time as this Appeal.  A draft Notice of Appeal is attached.

  2. Further and in the alternative, if the Appellant is successful to the extent that the discontinuance of application no. 1039 of 2000 is not set aside, the objector seeks an order for an extension of time to lodge a fresh application for harsh, oppressive and unfair dismissal.”

6                 The Notice of Objection is not a competent step in the proceedings, either pursuant to the Act or to the Industrial Relations Commission Regulations 1985 (as amended), in an appeal to the Full Bench pursuant to s.49 of the Act.  However, the Full Bench was entitled to and treated the notice as reflecting submissions which might be put to it.

Draft Notice of Appeal – Matter No 1039 of 2000

7                 We would also add that attached to the “Amended Notice of Objection” was a draft Notice of Appeal to the Full Bench against the decision of the Commission in matter No 1039 of 2000.  However, Mr Bennett, of Counsel for the respondent, when asked by the Full Bench, expressly declined to apply for an extension of time within which to institute (or to otherwise pursue) such an appeal.

BACKGROUND

8                 The respondent employee, Mr John Franklyn Lane, was the applicant in proceedings at first instance brought by application No 1039 of 2000, which was filed in this Commission on 7 July 2000.

9                 The appellant is and was, at all material times, a company incorporated under the laws of this State and was engaged in business of the provision of various internet related services.  At all material times, from 16 June 1999, Mr Lane owned 20% of the business known as “aussie.com.au”.  Mr Lane alleged that he was an employee of the appellant, having commenced employment as Business Development Manager on or about 20 August 1999, and that he was, on 27 June 2000, summarily dismissed.  He alleged that this dismissal was harsh, oppressive and unfair and sought an order for reinstatement without loss of entitlements, making application pursuant to s.29 of the Act.  The application was opposed by the respondent.

10              There was a conciliation conference held pursuant to s.32 of the Act on 28 November 2000, followed by a letter to the respondent, care of his solicitors, signed by the Associate to the Commissioner and dated 30 January 2001 which, formal parts omitted, reads as follows:-

  “A conciliation conference pursuant to section 32 of the Industrial Relations Act 1979 was held before Commissioner Wood on 28 November 2000.  At the conclusion of which the matter was settled and the Commission advised that the matter would be adjourned for seven days.

  On 6 December 2000 correspondence was received from the applicant’s solicitor indicating that the matter was settled and a notice of discontinuance would be filed within 10 days.

  Please advise the Commission, in writing, of progress with the matter or alternatively file a notice of discontinuance by close of business Wednesday 14 February 2001.  If the Commission has not had a reply by this date the matter will be discontinued on the Commission’s own motion.”

11              There was no response to that letter.

12              We should add that, after the conference, the solicitors for both parties were discussing the contents of a deed of settlement and there were submissions before us as to whether a settlement had been reached or not, by reference to correspondence between solicitors and copies of a draft deed of settlement contained in a Supplementary Appeal Book.

13              The matter came before the Commission which, by order made on 15 February 2001 and perfected on 16 February 2001.  The terms of the order made in application No 1039 of 2000, in full, are as follows:-

  “WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; and

  WHEREAS on 28 November 2000 a conference was held pursuant to section 32 of the Act, at which time terms of settlement were agreed; and

  WHEREAS the Commission wrote to the applicant on 30 January 2001 advising that the application would be discontinued on the Commission’s own motion unless advised otherwise by the applicant by 14 February 2001; and

  WHEREAS there has been no response on behalf of the applicant;

  NOW THEREFORE the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders –

  THAT the application be and is hereby discontinued.”

 (See pages 22-23 of the appeal book (hereinafter referred to as “AB”).)

14              An application, No 440 of 2001, purporting to be made pursuant to s.27(1)(v) of the Act, was lodged in the Commission on 12 March 2001 and, after a hearing on 17 May 2001, an order revoking the order reproduced above and made in application No 1039 of 2000 was made.

15              In his reasons for decision (see pages 10-14(AB)), delivered extemporaneously on 17 May 2001, the Commissioner noted that there was an agreement between the parties which was “an agreement which was all but settled in the conference of the 28th of November 2000, bar for some wording in a deed of settlement (which was to be confidential between the parties)”.  Apart from that, a settlement was achieved.

16              The Commissioner, however, expressly found that settlement had not in fact been reached and that the correspondence was explicit about it.  He did not deal with the correspondence, except to reproduce the terms of a letter of 15 December 2000 from the solicitors for the appellant to the solicitors for the respondent, which reads as follows:-

  “1. We have received no correspondence from you since our letter of 6 December.

2. Given the delays which have occurred in connection with this matter (none of which have been attributable to our client), we are instructed to inform you that, should you not accept our client’s proposal for settlement by 5.00pm today, all offers from our client will lapse immediately thereafter.

  3. If no or no adequate response is received by that time, we propose writing to the Commissioner requesting a directions hearing in the new year and a date for trial.”

 (See page 39 of the Supplementary Appeal Book.)

17              The Commissioner then found that no settlement was achieved.

18              The Commissioner then held that, to not allow Mr Lane to pursue his case would be in breach of his duties under s.26 of the Act, given that the terms of his original order were also clear.

19              The Commissioner quoted a recital to the order as follows:-

 “WHEREAS on 28 November 2000 a conference was held pursuant to section 32 of the Act, at which time terms of settlement were agreed....”

20              The Commissioner then observed that this was an error, i.e. to find that terms of settlement were agreed, and that the letter of the Commission of 30 January 2001, which we have reproduced above at paragraph 9, is also an error.

21              The correspondence from the solicitors for Mr Lane dated 6 December 2000 is quoted in part at page 11(AB) and reads as follows:-

  “ We write to confirm that the matter has now been settled between the parties with the only outstanding matter being the execution of the Deed of Settlement – now substantially settled between the parties – the payment of the settlement sum, and the filing of the Notice of Discontinuance (which must await the execution of the Deed and payment of the settlement sum).

  We shall write to you immediately if there are any difficulties experienced in the settlement of the above Application, which we anticipate should be completed, and a Notice of Discontinuance filed within the next 10 days.”

 (See page 35 of the Supplementary Appeal Book.)

22              The Commissioner, having held that an error had been made and that s.27(1)(m) of the Act, which provides a power to:-

  “correct, amend or waive any error, defect or irregularity whether in substance or in form.”

 applied.

23              The Commissioner also held that, to not exercise his discretion to amend the error that was made would be ruling out Mr Lane’s application to have his unfair dismissal conciliated or, alternatively, determined, and that that would be a wrong exercise of his “obligations” under the Act.  The Commissioner then determined to revoke the order which was made on 15 February 2001 and deposited on 16 February 2001.  This, therefore, effectively reinstated Mr Lane’s application and returned it to a point of conciliation.

24              The Commissioner observed that he was not making an order pursuant to s.27(1)(v) of the Act.  He observed that, in respect of application No 440 of 2001, he would be asking the Registrar to “cease that file” and it would then become part of application No 1039 of 2000.  He observed that the matters were, effectively, the same matter and that the approach made to the Commission by application No 440 of 2001 could have effectively been made by correspondence to the Commission because Mr Lane was seeking that matter No 1039 of 2000 be reinstated or revived.

25              The Commissioner then held that application No 440 of 2001 would not be a separate application and that this order was being made pursuant to s.27(1)(m) of the Act or pursuant to the general power under s.26(1)(a) of the Act to act without regard to technicalities or legal form.

26              Thus, the orders of 16 February 2001 would be revoked and Mr Lane’s s.29 application would be returned to conciliation.

27              The appellant contended at first instance that the Commission did not have the power to entertain application No 440 of 2001 because, by virtue of the order of 16 February 2001, the Commission was functus officio in respect of Mr Lane’s s.29 application.  The Commissioner did not consider this to be the case.  The matter was clearly intended to be finalised by the Commission on the premise that the settlement had been achieved.

28              In addition, the Commissioner held that he was not functus officio and that the slip rule should apply.  He referred to the judgment in Cook v Australian Postal Corporation [1997] 597 (FCA) in which it was said:-

“the functus officio concept is referable only where the duty concerned has been finally performed by a relevant order or award or decision and not where some mere interim or preliminary conclusion has been reached; an interlocutory order may be set aside.”

29              (The term “functus officio” has been dealt with by the Full Bench of this Commission and by the Industrial Appeal Court.)

ISSUES AND CONCLUSIONS

30              This appeal is a narrow one.  Part of the appeal relates to its competence.  That stems from the nature of the order made.  At first instance, there was an application made to revoke the order made in application No 1039 of 2000, an order which was made and perfected.

31              That order, which was made and perfected, was clearly a decision, within the meaning of s.7 of the Act, where a decision is defined as follows:-

  ““decision” includes award, order, declaration or finding”

32              We should also add that a “finding” is defined in s.7 of the Act as follows:-

  ““finding” means a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate”

33              Further, because the order was perfected, it was an order in its final form in that the depositing of the order in the office of the Registrar effected a compliance with s.36 of the Act.

34              The perfected order, by definition, constitutes also a “decision”, as defined, for the purposes of s.49 of the Act.

35              Thus, it was a decision which therefore gave a party to the proceedings the right to institute an appeal against it.  There was no doubt that the order correctly recorded the meaning of the court at the time.

36              The question then is whether the applicant at first instance, the respondent on this appeal, could validly apply for the revocation of the order and whether the Commission at first instance had jurisdiction and power to make the order.

37              It was submitted by the appellant that the Commission, having made the order of 16 February 2001 in application No 1039 of 2000 which constitutes, as we have observed, a decision, was functus officio.  It was plainly functus officio; it had disposed of the matter before it by means of an order which it said was made by consent and, in fact, made the order.

38              The Commission had no more functions, once the order was perfected, which it could perform in relation to the matter.  The Commission was therefore functus officio.

39              Further, it was submitted by the appellant, there was no “industrial matter” before the Commission.

40              There was no “industrial matter” because the Commission had heard and determined the matter and exhausted its jurisdiction and powers.  The Commission had made a final and dispositive order in relation to the industrial matter before it.  The Commission was functus officio because it had discharged all of its functions and could do nothing more after the order was perfected, as it was (see AEEFEU and Another v Executive Director, Building Management Authority 75 WAIG 2483 (FB) and the cases cited therein;  see also RRIA  v AMWSU 70 WAIG 2083 (IAC);  ALHMWU v Metro Meat International Limited 78 WAIG 813 (FB)).

41              Next, since the matter came before the Commission under s.32 of the Act, there were no more powers for it to exercise because the Commission had purported to make an order, based on an alleged agreement following a conciliation pursuant to s.32 of the Act, which order was perfected.  Once perfected, the order could only be dealt with by this Commission and constituted by the Full Bench pursuant to s.49 of the Act.

42              It was submitted by the respondent that the Commission, having made an error which it identified, was entitled to correct the original order pursuant to the “slip rule”.

43              First, there is no slip rule which exists unless it exists in Rules of Courts (see Shaddock & Associates Pty Ltd and Another v The Council of the City of Parramatta 151 CLR 590, where the “slip rule” was contained in the Rules of the Court).  There is no common law slip rule which would apply to this Commission.  Such a power is contained in s.27(1)(m) of the Act.  The Commissioner purported to use s.27(1)(m) as the basis of his power to make the revocation order.  That section, however, commences with the words “Except as otherwise provided in this Act”.  S.49 and s.36 provide otherwise.

44              In addition, the Commissioner was not correcting an error in substance or in form (or any slip) but, effectively and actually revoking an order which had been made, constituted by a single Commissioner and, in addition, which had been perfected.

45              Further, if “court” is taken to include this Commission, which is a court of record (see s.12 of the Act), and “a court” includes the Full Bench sitting on appeal (see Lebeidi t/as Sugar Gum Restaurant v Napoli 81 WAIG 1357 (IAC), s.34 forbids the Commission, too, dealing with the order in the manner which it did.  (There is no definition of the term “court” in the Act, save and except as follows (see s.7):-

  ““Court” means the Western Australian Industrial Appeal Court continued and constituted under this Act”

46              In any event, the error submitted to have been made was not an error in form or an error which would attract the slip rule, insofar as that rule is contained in s.27(1)(m) of the Act.  Further, since this was not an error made in the exercise of the jurisdiction, it is clear there was not an error made or that it was one of substance, within the meaning of s.27(1)(m) of the Act.  We were not cited any authority for the meaning of the phrase “error in substance or in form”, and no authority was cited which would establish that, if there was an error, it was one of “substance”.  It was certainly not one of “form”.

47              S.27(1)(m) of the Act, for those reasons, does not and did not provide any power to the Commission at first instance to make the order which it did.

48              S.27(1)(v) of the Act gives no power, either, to make such an order.  S.27(1)(v) must be read in the context of all of the preceding powers prescribed in s.27(1).  S.27(1)(v) confers a general power which is a catch-all for matters which have been expressly included.  It is not to be read in isolation, but in the context of the specific powers which precede it (see RRIA v FEDFU 67 WAIG 315 (IAC)).  It provides no power to correct orders which have been perfected.

49              It is also necessary to observe that no head of power or jurisdiction is conferred on the Commission by s.26(1)(a) of the Act.  That section does not confer a general jurisdiction to do whatever is thought to be in accordance with equity, good conscience and the substantial merits of the case.  There must first be a foundation in the Act itself for the exercise of the jurisdiction before s.26 operates (see RRIA v ADSTE 68 WAIG 11 (IAC) (“Pepler’s Case”) per Olney J at page 20).

50              The order appealed against was also arguably a finding, as defined, because, by the order, the Commissioner did not finally dispose of the proceedings, but it is usually in the public interest that an order such as this, made in excess of jurisdiction and power, be corrected.  The appeal should be allowed to be made pursuant to the power conferred on the Full Bench by s.49 of the Act, by reference to s.49(2a).

51              The order made at first instance was made without jurisdiction or power.  It was incompetent and should be quashed.

52              We therefore upheld the appeal, for those reasons, and quashed the decision at first instance.