General Motors-Holden's Ltd v Di Fazio [1979] HCA 43; (1979) 141 CLR 659 (28 September 1979)

HIGH COURT OF AUSTRALIA

GENERAL MOTORS-HOLDEN'S LTD. v. DI FAZIO [1979] HCA 43; (1979) 141 CLR 659

Limitation of Actions (S.A.) - Constitutional Law (Cth)

High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4) and Murphy(5) JJ.

CATCHWORDS

Limitation of Actions (S.A.) - Powers of Court - Power to extend time prescribed for instituting an action - Limitation of time within &which dismissed employee may apply for re-instatement - Application made out of time to extend time for application - Whether power to extend applies to application - Action - Limitation of Actions Act, 1936-1975 (S.A.), ss. 3 (1), 47, 48 - Industrial Conciliation and Arbitration Act, 1972-1975 (S.A.), s. 15 (1) (e).

Constitutional Law (Cth) - Inconsistency between Commonwealth and State laws - State law giving court discretionary power to extend prescribed time for making application for re-instatement of dismissed employee - Federal award providing for applications for re-instatement pursuant to State law but silent about extension of time - The Constitution (63 & 64 Vict. c. 2), s. 109 - Limitation of Actions Act, 1936-1975 (S.A.), ss. 47, 48.

HEARING

Melbourne, 1979, May 8.
Sydney, 1979, September 28. 28:9:1979
APPLICATION for special leave to appeal from the Supreme Court of South Australia.

DECISION

Sept. 28.
The following written judgments were delivered: -
BARWICK C.J. In this matter I have had the advantage of reading the reasons Mason. I agree that special leave to appeal should be granted. (at p661)

2. I have come to the conclusion that s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 (S.A.) is an Act which prescribes or limits the time for instituting an action within the meaning and operation of s. 48 (1) of the Limitation of Actions Act, 1936-1975 (S.A.), and that therefore the Industrial Court has jurisdiction to extend the time mentioned in s. 15 (1) (e) and, upon such extension being made, to make the orders authorized by s. 15 (1) (e) notwithstanding the fact that the application therefor was not made within the time prescribed by s. 15 (1) (e). I must confess that I have reached this conclusion with hesitation and reluctance. The conclusion in truth makes a nonsense of s. 15 (1) (e) and of the obvious purpose it has in requiring the Court not to exercise its jurisdiction unless moved within the time prescribed. There are quite obvious reasons for insisting upon the application for reinstatement to be made promptly. But I have felt bound to conclude that the time prescribed by s. 15 (1) (e) may be extended by an exercise of the powers given by s. 48 (1) of the Limitation of Actions Act. (at p661)

3. One can only hope that the discretionary power to extend the time for applying for reinstatement will not be exercised as of course but only in cases where justice to both the parties involved allows of that extension. Consequently, I would join with my brothers Gibbs and Mason in dismissing the appeal. (at p662)

GIBBS J. I have had the advantage of reading the reasons for judgment prepared by my brother Mason and agree with them. However, the case involves a rather difficult question of statutory construction, in relation to which I would add a few observations of my own. (at p662)

2. The question for decision is whether s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 (S.A.), as amended, the concluding words of which provide that "the Court shall not exercise the jurisdiction conferred on it by this paragraph unless an application invoking that jurisdiction is made, by or on behalf of the dismissed employee, within twenty-one days . . .", "prescribes or limits the time for . . . instituting" proceedings under that paragraph, within the meaning of s. 48 (1) of the Limitation of Actions Act, 1936-1975 (S.A.). The natural meaning of s. 15 (1) (e) is that the Industrial Court of South Australia has jurisdiction to entertain proceedings under that paragraph, even though they have been brought after the lapse of twenty-one days, but that in those circumstances the court shall not exercise the jurisdiction. It appears that the legislature intended to confer on the Industrial Court jurisdiction to determine whether the application had been made within the period of twenty-one days, so that if the Court made an erroneous decision on that question, it would still be acting within the limits of its jurisdiction, and prohibition would not lie. It may, therefore, be accepted that the concluding words of s. 15 (1) (e) do not impose a condition on the jurisdiction of the Court. That, however, is not in itself material. The provisions of s. 48 (2) of the Limitation of Actions Act put it beyond doubt that the power given by s. 48 (1) may be exercised by a court in respect of proceedings that are within jurisdiction as well as in respect of proceedings that would be within jurisdiction if the proceedings were not out of time. (at p662)

3. It does not necessarily follow from the fact that the concluding words of s. 15 (1) (e) limit the power of the Industrial Court, that those words do not also limit the time for instituting proceedings under the section. The effect of those concluding words is that an application not made within twenty-one days should not be heard and determined; in other words, the application will be a futility. The words in question therefore limit the time within which an effective application may be made. In substance, the paragraph seems to me to be just as much a limitation of the time for commencing proceedings as if it had provided that an application shall be made within twenty-one days. (at p663)

4. Section 15 (1) (e) in terms confers jurisdiction on the Court, but it also implicitly confers on the dismissed employee a right to make an application which the Court must hear and determine, and conditions that right on compliance with the requirement that the application be made within twenty-one days - cf. The Crown v. McNeil [1922] HCA 33; (1922) 31 CLR 76, at pp 96, 99-100 . However, it does not seem necessary, for the purposes of s. 48 (1) of the Limitation of Actions Act, to consider whether the words of s. 15 (1) (e) bar a cause of action, or simply prevent a dismissed employee from making a successful application, unless the application is made within twenty-one days. On either view, the words limit the time for instituting proceedings under the paragraph. (at p663)

5. I see no incongruity in holding that the discretionary power granted by s. 48 of the Limitation of Actions Act enables the court to extend time even in proceedings within s. 47 (2) (d) of that Act, that is, proceedings "to the nature or purpose of which the limitation is, in the opinion of the court, essential". In the present case, for example, the employee made his application one day late, and the purpose of the limitation is not likely to be defeated by extending the time by one day. (at p663)

6. It appears to be true that if the same construction is applied to s. 45 of the Limitation of Actions Act, the effect of that section will be to extend the time for bringing proceedings under s. 15 (1) (e) by a person under a disability by the period for which the disability continues. This would, in some cases, be highly inconvenient. However, the power given by s. 15 (1) (e) is discretionary, and it would be within the power of the Industrial Court to frame any order it might make so as to avoid injustice in such a case. (at p663)

7. It is unnecessary for me to add anything to what my brother Mason has said in relation to the submission that the provisions of s. 48 are inconsistent with the provisions of an award made under the Conciliation and Arbitration Act, 1904 (Cth), as amended. (at p663)

8. I agree that special leave to appeal should be granted and that the appeal should be dismissed. (at p663)

STEPHEN J. I have had the advantage of reading the reasons for judgment of my brothers Gibbs and Mason. I agree with the reasons for judgment of Mason J. and with the additional observations contained in those of Gibbs J. (at p663)

2. To these I would only add a citation from the judgment of King C.J. in the Full Court of the Supreme Court of South Australia. I do so because that citation precisely states my own view of the interaction of ss. 47 and 48 of the Limitation of Actions Act 1936- 1975 (S.A.). Of it the learned Chief Justice said:
"It seems to me that the purpose of the two sections is different. Section 47 is concerned with the harshness of the operation of the various limitation periods of less than one year which are scattered through the statute books. Its purpose and effect are to substitute for such short periods a period of one year.
Section 48 is concerned with the injustice which may result from the rigid application of time limits in general. It seeks to ameliorate such injustice by conferring on the Court a discretion, subject to some restriction where the time limit is one prescribed by the Limitation of Actions Act itself, to extend time limits 'to such an extent, and upon such terms (if any) as the justice of the case may require'. I see no reason why this provision should not have been intended to apply to time limits which are extended by sec. 47. Unjust results might flow from those extended time limits just as from other time limits." (at p664)

3. I would grant special leave to appeal and dismiss the appeal. (at p664)

MASON J. This is an application for special leave to appeal from an order made by the Full Court of the Supreme Court of South Australia discharging orders nisi for prohibition and certiorari. (at p664)

2. On 10th August 1978 the applicant dismissed from its service an employee named Cornish. On 1st September 1978, more than twenty-one days later, Cornish applied by summons to the Industrial Court of South Australia under s. 15 (1) (e) of the Industrial Conciliation and Arbitration Act, 1972 (S.A.) for a determination that his dismissal was harsh or unjust or unreasonable and for an order that the applicant re-employ him in his old position. (at p664)

3. Section 15 (1) (e) provides:
"15. (1) In addition to the jurisdiction conferred on it elsewhere in this Act, or under any other Act whether of this State or the Commonwealth the Court shall, subject to this Act, have jurisdiction -

. . .
(e) to hear and determine any question as to whether the dismissal from

his employment of an employee, not being an employee who has under any Act or law a right of appeal or review against his dismissal, was harsh, unjust or unreasonable and the Court may, if it thinks fit, direct the employer of that employee to re-employ that employee in his former position on terms that are not less favourable to the employee than if he had not been dismissed from his employment and without limiting the generality of the foregoing may order that the employee be paid a sum not exceeding a sum equal to the wages that he would have received had he been employed in that employment between the time of his dismissal and the time at which he was re-employed but the Court shall not exercise the jurisdiction conferred on it by this paragraph unless an application invoking that jurisdiction is made, by or on behalf of the dismissed employee, within twenty-one days from the day on which it is alleged that the employee was so dismissed from his employment." (at p665)

4. Cornish amended his summons by seeking an extension of time within which to make application under s. 15 (1) (e). On 3rd November 1978 the magistrate who was exercising jurisdiction under the Industrial Conciliation and Arbitration Act made an order extending the time, declaring that he did so pursuant to s. 48 of the Limitation of Actions Act, 1936-1975 (S.A.) ("the Act"). The Full Court of the Supreme Court (King C.J. and Williams A.J., Jacobs J. dissenting) held that the magistrate was correct in proceeding on the footing that s. 48 of the Act applies to proceedings under s. 15 (1) (e). (at p665)

5. The applicant submits (1) that the Full Court was incorrect, and (2) that the question which arises is one of public and general importance in that it involves the interpretation of the provisions of s. 48 and that these provisions have a general application to statutory provisions limiting or prescribing the time within which actions may be brought and steps may be taken in legal proceedings. I agree that the question is one of public and general importance and I would therefore grant special leave to appeal. (at p665)

6. Section 47 of the Act is a general provision which extends to twelve months the time within which legal proceedings may be brought in cases where the statutory limitation limits the time to a period of less than twelve months from the date of the cause of action. Section 47 (1) and (2) provide:
"(1) Where any Act, regulation, rule or by-law limits the time within which an action to which this section applies may be brought to a period of less than twelve months from the time the cause of action arises, then, notwithstanding that limitation, that action may be brought at any time within twelve months from the time the cause of action arises.

(2) This section applies to all actions except -
(a) a criminal action;
(b) an action to try the validity of an election or of title to an

office;
(c) an action to try the validity of an assessment, rate or loan made by or to a local government body;

and
(d) any other action to the nature or purpose of which the limitation is,

in the opinion of the court, essential." (at p666)

7. Section 48 confers a general power on courts to extend in particular cases the time limited or prescribed for instituting an action or for doing any act in an action or for doing any act with a view to instituting an action. Section 48 (1) and (2) provide:
"(1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for -

(a) instituting an action;
(b) doing any act, or taking any step in an action;
or
(c) doing any act or taking any step with a view to instituting an

action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2) A court may exercise the powers conferred by this section in respect of any action that -

(a) the court has jurisdiction to entertain;
or
(b) the court would, if the action were not out of time, have jurisdiction

to entertain." (at p666)

8. Section 3 (1) of the Act defines the word "action", in the absence of a contrary context, as including "legal proceedings of all kinds". (at p666)

9. All the members of the Full Court took the view that proceedings under s. 15 (1) (e) fall within s. 47 (1). However, they held that such proceedings also fall within s. 47 (2) (d) on the ground that the limitation of twenty-one days in s. 15 (1) (e) is essential to the nature or purpose of the proceedings for which it provides. In so concluding the Court evidently accepted the reasoning in a previous decision of the Industrial Court, Coleman v. Redapple Restaurants Pty. Ltd. (1975) 42 SAIR 990 . There a majority of the Court (Judge Olsson and Judge Allan) held that proceedings pursuant to s. 15 (1) (e) are a type of action to the nature and purpose of which the time limitation is essential and that s. 47 (1) of the Act has no application to them. On the other hand, they held that s. 48 of the Act did apply to the proceedings and empowered the Court to extend the time. Stanley J., who dissented, considered that the time limitation of twenty-one days was "absolutely necessary" to the proceedings, that it was not extended by s. 47 (1) and that it was not capable of being extended pursuant to s. 48. The majority in the Full Court of the Supreme Court (King C.J. and Williams A.J.) appear to have acted on the view of the majority in Coleman's Case. Jacobs J., who dissented in the Full Court, thought that a time limitation which was essential within the meaning of s. 47 (2) (d) could not be extended under s. 48. (at p667)

10. Following the decision in Coleman's Case, the Industrial Court, by order under s. 48, extended the time within which Coleman could commence proceedings under s. 15 (1) (e). The correctness of this order was challenged in proceedings for a prohibition in the Full Court of the Supreme Court. The Full Court declined to grant prohibition on the ground that, if an error had been made, it was an error of law made in the exercise of the Court's jurisdiction (Reg. v. Stanley; Ex parte Redapple Restaurants Pty. Ltd. (1976) 13 SASR 290 ). The reasons given by Bray C.J. for arriving at this result are relevant to the question now under consideration and I shall refer to them shortly. (at p667)

11. Section 15 (1) (e) is a somewhat unusual provision. It confers jurisdiction to make an order in favour of the applicant but it prohibits the Court from exercising the jurisdiction thereby conferred except on an application made within twenty-one days from the date on which it is alleged that the applicant was dismissed. The sub-section does not, as was suggested in argument, condition the existence of the Court's jurisdiction on the fact of an application having been made within the prescribed time. The point was made by Bray C.J. in Reg. v. Stanley; Ex parte Redapple Restaurants Pty. Ltd. when his Honour drew the traditional distinction between the existence of jurisdiction and the exercise of jurisdiction. His Honour said (7):
"The last clause of the sub-section imposes a time limit but not in words which deny jurisdiction to hear claims made after its expiry; rather, it seems to me, in words which acknowledge the existence of the jurisdiction but control its exercise.
. . . It seems to me that this unusual form of words must have been chosen for a purpose: and the obvious purpose seems to me to make violation of the prescription in question an error of law indeed, but not an excess of jurisdiction."
Later, the Chief Justice said (1976) 13 SASR, at p 295 :
"Parliament has said in effect: 'The Court has jurisdiction to entertain claims made after twenty-one days from dismissal. That is part of the "jurisdiction conferred on it by this paragraph". But it is not to exercise it.' The result is that if the Court does purport to exercise it, it has made an error of law within its jurisdiction but has not exceeded it." (at p668)

12. There is some slight difference in language between the opening words of s. 47 (1) and those of s. 48 (1) (a). Nevertheless it is apparent that both sections are directed to statutory limitations of action, that is, statutory provisions which fix the time within which legal proceedings may be brought or instituted, though s. 48 (1) applies to other time limitations as well (see s. 48 (1) (b) and (c).) The most common illustration of the statutory limitation of action is that which operates to bar the remedy or to bar the right and the remedy unless an action is commenced within a prescribed time. There is, however, no reason to think that the two sections are confined in their application to limitations of this kind. The expression "cause of action" frequently signifies an antecedent right asserted by a plaintiff. However, in the context of a general provision dealing with limitations of actions and applicable to "all actions" except those mentioned in s. 47 (2), it should be given the wider meaning "cause of complaint". Moreover, the width and generality of the statutory definition of the word "action" indicate that the provisions are not restricted to actions in which the plaintiff seeks to enforce an antecedent legal right. Quite obviously they extend to proceedings in which the making of the order sought is the source of the right sought to be established (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141, at pp 165-166 ). (at p668)

13. The applicant attempted to avoid this conclusion by submitting that "action" in s. 48 (1) should be narrowly construed, despite the presence of the statutory definition in s. 3 (1). Reliance was placed on the expression "criminal proceedings" in s. 48 (3). However, this expression is not in any way inconsistent with the definition. Reference was also made to s. 48 (5) which enables the Court to determine proceedings under s. 48 "at any time before or after the close of pleadings". It scarcely needs to be said that to proceed without more from this premiss to the conclusion that s. 48 applies only to actions involving a writ and pleadings would be to perpetrate a fundamental error in logic. (at p668)

14. The language of s. 47 (1) and s. 48 (1) is apt to apply to any statutory limitation fixing the time within which proceedings may be brought, whether the limitation bars the right or the remedy, whether it deprives the Court of jurisdiction or, I would add, of power to make an order. That s. 48 applies to a limitation which conditions the existence of jurisdiction on an application made within a time prescribed is made clear by s. 48 (2) (b). True, there is no similar provision which in terms attests the application of the section or of s. 47 (1) to a limitation which prohibits the exercise of jurisdiction otherwise conferred except on an application made within a time prescribed. However, s. 48 (2) (a) makes it clear that the power conferred by s. 48 (1) may be exercised in respect of any action which it "has jurisdiction to entertain". Under s. 15 (1) (e) the Court has jurisdiction to entertain an application made out of time, though there is a prohibition against the exercise of jurisdiction in such a case. (at p669)

15. Section 48 (2) (b) confirms the impression that I gather from reading s. 47 (1) and s. 48 (1). They identify statutory provisions by reference to their effect in limiting the time in which proceedings may be brought; the two sub-sections do not otherwise refer to the character of the provisions or to the means by which the limitation operates to defeat the plaintiff's claim. It would be quite wrong to import into the two sub-sections a qualification, based on s. 48 (2) (b), that the two subsections have no application to a limitation which operates by prohibiting the exercise of jurisdiction except on an application made within the prescribed time, whilst conceding that they may apply to a limitation which conditions the existence of jurisdiction on such an application. Section 48 (2) (b) does not extend the language of s. 48 (1). Section 48 (2) (b) is designed to ensure that an extension of time may be granted, notwithstanding that otherwise the Court may lack jurisdiction to make the order. (at p669)

16. The consequence is, in my opinion, that proceedings under s. 15 (1) (e) would fall within s. 47 (1), but for the circumstance that they fall within s. 47 (2) (d). It was conceded by the respondent that proceedings under s. 15 (1) (e) fall within s. 47 (2) (d) in accordance with the majority view in Coleman's Case (1975) 42 SAIR 990 . I see no reason to doubt the correctness of this concession. As an employer is likely in many cases to engage another person to take the place of a dismissed employee, and as proceedings under s. 15 (1) (e) may result in an order for the reinstatement of the dismissed employee, it is obvious that the time limitation of twenty-one days is essential to the nature and purpose of the proceedings. (at p669)

17. It follows from the interpretation that I have placed on s. 48 (1) that this sub-section then applies to proceedings under s. 15 (1) (e). In expressing this conclusion I have not overlooked the applicant's argument that this interpretation could produce injustice to an employer who dismisses an employee aged seventeen years, because s. 45 of the Act, if given a similar interpretation, independently extends the period of the statutory limitation for the period of the employee's legal disability. The answer to this submission is that under s. 48 (1) the Court will not exercise its discretion in favour of an applicant where to do so would cause injustice and that, in any event, the Court would not exercise its undoubted discretion under s. 15 (1) (e) to order reinstatement where that order would cause a like result. (at p670)

18. It may seem curious that s. 48 enables an extension of time to be granted in a case in which the initial limitation of time is thought to be essential to the nature and purpose of the proceedings within the meaning of s. 47 (2) (d). This is a consequence of the way in which s. 48 is expressed, for it contains no exceptions corresponding to those mentioned in s. 47 (2). (at p670)

19. The final argument that needs to be considered is the applicant's submission that the provisions of s. 48 are inconsistent with the provisions of the General Motors-Holden's Ltd. (Part 1) General Award 1976 made under the Conciliation and Arbitration Act 1904 (as amended), which binds the parties to these proceedings and that, to the extent of the inconsistency, s. 48 is inoperative by virtue of s. 109 of the Constitution (see Reg. v. Industrial Court of South Australia; Ex parte General Motors-Holden's Pty. Ltd. (1975) 10 SASR 582 ; Reg. v. Clarkson; Ex parte General Motors-Holden's Pty. Ltd. [1976] HCA 8; (1976) 134 CLR 56 ). The argument is based on cll. 3 (b) and 6 (i) of the Award. They provide respectively:

"3 - INCIDENCE OF AWARD
. . .
(b) From the date of coming into operation of this award any other award

or determination or ordinance or State Act or industrial provision which might otherwise have applied to employees covered by this award shall be as a term and condition of this award excluded from applying to such employees and the Company. Provided, however, that this sub-clause shall not affect the operation of the Vehicle Industry (Long Service Leave) Award 1965 as amended from time to time. And further provided that this sub-clause shall not affect the operation of section 15 (1) (e) of the Industrial Conciliation and Arbitration Act 1972-1974 of the State of South Australia or any order made thereunder (and shall be deemed never to have affected such operation)."

"6 - CONTRACT OF EMPLOYMENT
. . .
Time Keeping
. . .
(i) Saving Provision
The provisions as to termination of employment by the Company contained

in this clause shall, in the case of employees employed within the State of South Australia, be subject to the operation of the provisions of section 15 (1) (e) of the Industrial Conciliation and Arbitration Act 1972-1974 of that State. In the case of an employee ordered to be re-employed in his former position pursuant to the provisions of that section, the conditions of his employment upon such re-employment shall be not less favourable to the employee than would have been the case if he had not been dismissed from his employment." (at p671)

20. The argument is that these references to s. 15 (1) (e) relate to that provision read in isolation from other statutory provisions which apply to it. It is not an interpretation which I accept. The Award should be read as referring to s. 15 (1) (e) in its context in the general body of State law so that the provision is read for the purposes of the Award in the light of the meaning and application which it has under State law, including the application to it of the provisions of the Act. (at p671)

21. For these reasons I would grant special leave to appeal and dismiss the appeal. (at p671)

MURPHY J. I agree with Mason J. Special leave should be granted, but the appeal should be dismissed. (at p671)

ORDER

Application for special leave to appeal granted.

Appeal dismissed with costs.