Re Vincent Turner v Jupiters Management Limited [1989] FCA 199; 29 IR 276 (2 June 1989)

FEDERAL COURT OF AUSTRALIA

Re: VINCENT TURNER
And: JUPITERS MANAGEMENT LIMITED
No. Q7 of 1988
FED No. 271
Practice and Procedure - Industrial Law - Evidence
29 IR 276

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop(1), Spender(2) and Pincus(2) JJ.

CATCHWORDS

Practice and Procedure - Appeal from Magistrate - discretion to receive further evidence - Magistrate decided substantive issues without allowing one party to call evidence - effect on respondent's case if appellant allowed to call further evidence - whether Full Court proper tribunal to receive evidence on disputed facts.

Industrial Law - whether employee entitled to benefit of an industrial agreement - lack of formal proof - whether employee entitled to re-open case to prove agreement.

Practice and Procedure - Magistrate - submission of no case on the basis of insufficiency of evidence - leave to re-open refused on basis that party had no cause of action - case decided on merits without party given full hearing on substantive issue - whether trial miscarried.

Evidence - proof of incorporation - proof of employer/employee relationship - admissions.

Conciliation and Arbitration Act 1904, ss.113, 123

Industrial Relations Act 1988, s.56

Industrial Relations Consequential Provisions) Act 1988, s.8(1)

Federal Court of Australia Act 1976, s.27

Federal Court Rules, O.52

HEARING

BRISBANE
2:6:1989

Counsel for the Appellant: Mr W.J. Cuthbert QC and Mr H. Linacre

Solicitors for the Appellant: Messrs Moynihan & Co., town agents for Peter Lawlor

Counsel for the Respondent: Mr J.E. Murdoch

Solicitors for the Respondent: Messrs Henderson Trout

ORDER

The appeal be allowed.

The orders appealed from be set aside.

The claim be remitted to the Magistrates Court at Southport for for hearing and determination, before a magistrate other than the magistrate who made the orders appealed from.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The facts of this appeal are set out in the reasons for judgment of Spender and Pincus JJ and need not be repeated. On those facts, it should be noted that the magistrate did not give leave to the appellant to re-open his case so that evidence could be led to prove that he was entitled to the benfit of the award, namely, that he was a member of the organisation of employees being a party to the certified agreement entered into in settlement of the industrial dispute. In the absence of that evidence and in the absence of an admission by the respondent, the appellant's claim was bound to fail.

2. At the hearing of the appeal before this Court, the respondent would not make an admission that the appellant was entitled to the benefit of the agreement. In those circumstances, the appeal, of necessity, would fail, but on a point which the magistrate said would be unjust. On the facts of this case, the appellant should have been given leave to re-open his case for this purpose. The evidence, although of importance, was in the nature of a procedural matter arising from the wording of s.123 of the Conciliation and Arbitration Act 1904 and authorities with respect to the proper construction of that section.

3. At the hearing of the appeal before this Court, counsel for the appellant informed the Court that he intended to seek leave to tender evidence that the appellant was entitled to the benefit of the agreement. Section 27 of the Federal Court of Australia Act 1976 provides that on an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose but has a discretion to receive further evidence. The appellant had not complied with the requirements of O.52 of the Federal Court Rules applying with respect to the giving of further evidence but this does not constitute an absolute bar to the giving of leave to lead further evidence. Having regard to the way in which the proceedings had been conducted before the magistrate, this is a case where this Court may well have given leave to the appellant to call the formal evidence sought to be tendered and then decided the appeal on the substantive issues raised by the appeal.

4. At the hearing before the magistrate, counsel then appearing for the respondent, told the magistrate that if the appellant was permitted to re-open his case and call further evidence, the respondent would lead evidence directed to the substantive issues of the case. The magistrate, apparently, ignored this and decided the substantive issues on the basis that the appellant had proved his entitlement to the benefit of the agreement but without allowing the respondent to call the evidence it desired to lead. It is true that the magistrate found in favour of the respondent without that further evidence, but that places the respondent in jeopardy at the hearing of this appeal.

5. If the appellant had been given leave to lead the evidence to establish his entitlement to the benefit of the award and the Court then proceeded to hear and determine the substantive issues raised between the parties, the respondent would be placed in an invidious position. Due to no fault of its own, the respondent would not have all the evidence before this Court which it had desired to lead before the magistrate if the appellant had been given leave to re-open his case at that stage. To overcome this unjust position, counsel for the respondent informed the Court that if the appellant was given leave to lead further evidence, the respondent would seek leave to lead evidence directed to the substantive issues raised by the appeal.

6. The power conferred on a Full Court by s.27 of the Federal Court of Australia Act to allow further evidence to be given on an appeal is exercised rarely and in exceptional circumstances only. In the present case, the giving of leave to the respondent to call evidence would, in substance, make the Full Court a trial court in which disputed questions of fact could arise. Questions of credibility could arise between evidence given by the appellant and evidence given by witnesses called by the respondent. The evidence of the appellant had not been given before the Full Court and the Full Court would be placed at a disadvantage in determining issues of credibility. Of more importance, however, a Full Court of the Federal Court exercising appellate jurisdiction is not a proper tribunal to receive evidence on disputed facts.

7. In the circumstances of this case, the absence of evidence sought to be led by the appellant and which the magistrate said would be unjust to refuse the appellant to lead, together with the absence of evidence sought to be led by the respondent if the appellant was given leave to lead his further evidence, made it imperative that the appeal be allowed and the order made by the magistrate be set aside. To allow the order to stand would be manifestly wrong and unjust. The only fair course to adopt was to direct a new trial before another magistrate at which the normal procedures should be followed and at which each party would be able to lead all evidence desired to establish their respective cases.

This is an appeal from the Magistrates Court, Southport under s.113 of the Conciliation and Arbitration Act 1904. The appeal was instituted before and heard after the date of commencement of the Industrial Relations Act 1988 and the Industrial Relations (Consequential Provisions) Act 1988 - i.e. 1 March 1989.

2. Under s.8(1) of the Industrial Relations (Consequential Provisions) Act, Part III of the Industrial Relations Act, subject to certain modifications, applies to these proceedings. The modifications are irrelevant to this case. This Court is therefore, in hearing the appeal, exercising jurisdiction under s.56 of the Industrial Relations Act, which is the provision corresponding to s.113 of the Conciliation and Arbitration Act; the differences between the new section and the old are of no significance for the purpose of the present appeal.

3. At the conclusion of the hearing, the appeal was allowed and the Court announced that reasons would be given later.

4. The appellant sued the respondent in the Magistrates Court for $3,240.80, the particulars of the claim being as follows:-
"Contrary to the Provision of Clause 7 of the

Federaeted (sic) Liquor and Allied Industries
(Conrad International Hotel and Jupiters Casino)
Agreement 1985 on or about 7th April 1988 until
31st May 1988 the Defendant did stand down the
plaintiff without payment of wages."

5. The defence which was filed admitted that during the relevant period the defendant stood the plaintiff down without payment of wages, and set up implied contractual terms by way of defence. Subsequently, the defence was amended to plead that the standing down was justified under the provisions of the relevant Industrial Agreement.

6. In the result, the stipendiary magistrate dismissed the appellant's claim in a way which was contended by Mr Cuthbert, who led Mr Linacre for the appellant, to be erroneous. Consideration of the points taken by Mr Cuthbert requires some explanation of the course of events at the hearing.

7. During his opening, counsel for the appellant explained to the magistrate that the respondent was alleged to be party to an "award", that the claim was for wages due under the "award" and that the quantum was agreed. Documents were then tendered which showed that the appellant had been suspended by the defendant without pay because he had been charged with an offence involving illegal gambling, that protests on his behalf against the legality of the suspension had been rejected, that he had ultimately been convicted of the offence in question, that his Government licence as a casino employee had been cancelled, and that he was then dismissed. The claim related to the period between his suspension and his dismissal.

8. The evidence showed that the Australian Conciliation and Arbitration Commission had, on 24 February 1986, certified a memorandum of an agreement in settlement of an industrial dispute, that agreement applying to employees of the respondent employed in or in connection with Conrad International Hotel and Jupiters Casino complex at the Gold Coast. Clause 7 of the agreement permitted the employer to "deduct payment for any day or part of a day on which an employee cannot usefully employed for the following reasons: ..." There followed a list of reasons, the last of which was:

"(v) any cause for which the employer cannot
reasonably be held responsible, but shall not
apply to slackness of trade".

9. The appellant having closed his case, counsel for the respondent announced that he proposed to call no evidence. Addressing the magistrate, he argued that there was no evidence of an employer/employee relationship between the parties, no evidence that the respondent was incorporated and no evidence that the appellant was entitled to the benefit of any award. On being invited to address, counsel for the appellant argued that the points raised lacked substance, but suggested that he might be allowed to call further evidence. Counsel for the respondent argued that leave to reopen should not be given.

10. The magistrate then intimated, as we understand what was said, that he desired counsel for the respondent to say something on the substantive issues in the case. Counsel did so, saying, in effect, that he intended to submit "if it got to that" that the respondent was entitled to stand the appellant down under clause 7, mentioned above. His opponent replied, in what was plainly not a full address, and the Court adjourned.

11. We would remark that of the three alleged deficiencies in the appellant's proof, only one was an arguable point. The proceedings were commenced by a summons which, although it gave the name of the defendant as "Jupiters Management Ltd", did not expressly assert that an entity of that name had ever been incorporated. The notice of defence, however, described the defendant as a "company duly incorporated according to law, having its registered office at 16 Queensland Avenue, Broadbeach in the State of Queensland", thus removing any necessity to prove incorporation. Further, there was no necessity for the appellant to prove an employer/employee relationship between the parties, since that was expressly alleged by para 5 of the defence. Assuming it to be correct that the appellant's case was deficient in that there was an omission to prove that the appellant had the benefit of the industrial agreement relied on, the appellant's counsel informed the magistrate that that could be readily shown; it would undoubtedly have been a proper exercise of discretion to allow the case to be re-opened to fill the gap.

12. On resumption, the magistrate said in effect that he had considered whether there should be leave to re-open and that, on the basis that there would be no difficulty in proving the three points mentioned in the submission of no case, it would be unjust to refuse re-opening.

13. The magistrate went on to say that the respondent had, in the circumstances, "justification for dismissal" of the appellant, apparently on the basis of breach of an implied term of his contract of employment; the magistrate expressed the view that the same applied with respect to a right of suspension. He concluded by intimating that because the appellant had no cause of action, he would not allow a reopening. He gave judgment for the respondent. It should be noted that he did not decide the case on the basis of the point argued - i.e. clause 7 of the Industrial Agreement.

14. Counsel for the appellant protested that there was no occasion to give judgment, because all that had been asked for was a non-suit. After some further lengthy exchanges, in the course of which he was urged to reconsider his decision, the magistrate declined to do so.

15. Before this Court, counsel for the appellant argued that the trial had miscarried, in that the course the magistrate took, that of giving judgment on the basis of a decision on the merits of the matter, had been taken without giving counsel a full opportunity to address him on that subject. Our examination of the record of the proceedings has convinced us that the appellant's point is well taken. Both counsel below argued the question of the substantial right to stand the appellant down in a preliminary way, apparently because they treated it as subsidiary to the question whether the appellant should, if necessary, be allowed to reopen to prove the formal matters which, according to the respondent's argument, were required to be proved to make a case. They might have assumed that the magistrate had expressed interest in the substantive issues because he proposed to take the appellant's prospects of success into account when deciding whether to give leave to reopen. Whatever the reason might have been, it seems clear that counsel did not, until it was too late, understand that what the magistrate was about was deciding the whole case.

16. We are of opinion that the magistrate erred in not having afforded the appellant a reasonable opportunity to argue the substantive issue before giving judgment.

17. In our opinion, what the magistrate should have done was to give the appellant leave to reopen to prove that the appellant had the benefit of the award, being a member of the relevant union - a matter which, as the magistrate was informed from the Bar table, could have been proved easily enough. The magistrate should then have let the respondent call such evidence as it saw fit on the substantive issue, and concluded the hearing by taking submissions on the whole case.

18. Since the matter must be reheard, we find it unnecessary to analyse the process of reasoning by which the magistrate (prematurely, as we have held) decided the case, but we feel obliged to say that not all of it can be supported. In particular, a suggestion that the magistrate made that there might have been intentional delay by the appellant in the proceeding leading to his conviction of the offence mentioned above was, with respect, erroneous and irrelevant. Further, the magistrate did not, so far as his reasons show, give any consideration at all to the question whether it was possible to imply, in the contract of employment, a term permitting suspension. But it is inappropriate further to discuss the substantive issues in the case, which must be retried before another magistrate.