George Kweifio-Okai v Royal Melbourne Institute of Technology [1998] FCA 1219 (3 September 1998)

Last Updated: 30 September 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI 2661 of 1996

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA.

BETWEEN:	GEORGE KWEIFIO-OKAI Appellant
AND:	ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY Respondent

JUDGES:	TAMBERLIN, FINN AND MARSHALL JJ
DATE:	3 SEPTEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Ex-tempore Judgment

The Court

By notice of motion dated 2 September 1998, Dr George Kweifo-Okai ("the appellant") seeks leave to appeal to the Full Court from an interlocutory, discretionary order of Ryan J ("the primary judge") made on 9 February 1998. The order dismissed an application by the appellant that he be reinstated in his employment with the respondent pending the hearing and determination of his application for review of the exercise of power by a judicial registrar relating to the alleged unlawful termination of his employment.

Pursuant to s24(1A) of the Federal Court of Australia Act 1976 (Cth), this Court is first required to consider whether leave to appeal should be granted to Dr Kweifo-Okai.

Background

Dr Kweifo-Okai was employed by the respondent as a senior lecturer in its Anatomy and Physiology Department. Although named in Court documents as Royal Melbourne Institute of Technology, the respondent is now known as "RMIT University" and will hereinafter be referred to as "the University".

The University terminated the employment of Dr Kweifo-Okai on 14 October 1996. On 15 October 1996, Dr Kweifo-Okai filed an application pursuant to s170EA of the Industrial Relations Act 1988 (Cth) ("IR Act") in the registry of the Australian Industrial Relations Commission. In that application it was alleged that the University had unlawfully terminated Dr Kweifo-Okai's employment. The remedy of reinstatement was sought. The application was heard by a judicial registrar of the Industrial Relations Court of Australia ("IRCA") in late April and early May 1997. On 25 July 1997, the judicial registrar published reasons for judgment in which she found that Dr Kweifo-Okai's employment had been terminated in breach of s170DC of the IR Act, which by then had been re-titled the Workplace Relations Act 1996 (Cth) ("the Act") by virtue of the provisions of the Workplace Relations and Other Legilsation Amendment Act 1996 (Cth).

In the exercise of her discretion under s170EE(1) of the Act, the Judicial Registrar declined to grant any remedy to Dr Kweifo-Okai and ordered that the application be dismissed.

On 4 February 1998, Dr Kweifo-Okai filed a notice of motion made returnable on a directions hearing on 9 February 1998. That motion sought that he be reinstated to employment at the University pending judgment.

After hearing the submissions of Dr Kweifo-Okai, the primary judge said:

"Ordinarily a court is reluctant, for understandable reasons, to make an interim order. That reluctance is increased significantly where there is in force a presumptively correct decision of a judicial officer dismissing the application of the applicant for interim relief pending review of that decision. In the present case the considerations weighing against the grant of any interim relief are reinforced by the fact that, because of his personal circumstances and alternative employment which he has obtained, the applicant is unable to concur in arrangements for the hearing of this matter, in the circumstances in which the court finds itself, before the end of this year.

I am not persuaded on the material that there has been any improper attempt to interfere with or influence Mr Graydon, the witness called on behalf of the applicant before the judicial registrar, who is still employed in a relevant department of the respondent. In those circumstances the motion for an interim order of reinstatement will be dismissed. I shall add that to the order which I pronounced earlier."

The principles which apply in respect of leave to appeal from an interlocutory judgment are well settled: see Neimann v Electronic Industries Ltd [1978] VR 431 and Décor Corporation Pty Ltd v Dart Industries INC [1991] FCA 655; (1991) 33 FCR 397. In reaching his decision, his Honour applied principles set out by a Full Court of IRCA: see Norman v Besser Industries (NT) Pty Ltd (1996) 73 IR 375 at 378. It is well-settled law that a Court of Appeal will only interfere with the exercise of a discretionary decision by a primary judge in special circumstances: see House v The King [1936] HCA 40; (1936) 55 CLR 499. No such special circumstances have been advanced in the present case. The decision of Ryan J was made in the context of a discretion as to whether relief should be granted.

In an affidavit of 18 February 1998 in support of his notice of motion, Dr Kweifo-Okai made a number of submissions concerning the decision of the primary judge to refuse reinstatement pending the review. He subsequently filed an affidavit of 2 September 1998 in further support of his case. We have considered the submission and the material submitted with them, together with the detailed oral submissions made today. In our view, the matters further submitted do not raise sufficient doubt as to the correctness of his Honour's decision to warrant reconsideration by the Full Court. Finally, we are not persuaded that substantial injustice would be caused if leave were refused.

Order

We have consequently come to the view that leave to appeal should be refused and we so order.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 3 September 1998

Applicant:	Mr George Kweifo-Okai (in person)
Counsel for the Respondent:	Mr Justin Bourke
Solicitor for the Respondent:	Malleson Stephen Jaques
Date of Hearing:	3 September 1998
Date of Judgment:	3 September 1998