McDonald v Tinbilly Travellers Pty Ltd
[2008] QCA 17
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- Unreported Judgment
- Appeal Determined (QCA)
- McDonald v Tinbilly Travellers Pty Ltd[2008] QCA 17
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McDonald v Tinbilly Travellers Pty Ltd[2008] QCA 17
McDonald v Tinbilly Travellers Pty Ltd[2008] QCA 17
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | C2006/80 (QIRC) |
Court of Appeal | |
PROCEEDING: | Application to Strike Out |
ORIGINATING COURT: | |
DELIVERED ON: | 15 February 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 February 2008 |
JUDGES: | McMurdo P, Fraser JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | 1. The notice of appeal and the appellant’s application are struck out |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEALS TO SUPREME COURT INDUSTRIAL LAW – QUEENSLAND – APPEALS – PROCEDURE AND OTHER MATTERS RELATING TO APPEALS - where the appellant applied for leave to appeal to the Full Bench of the Industrial Relations Commission – where leave was denied – where the appellant appealed to this Court under s 340 Industrial Relations Act 1999 (Qld) – whether the appellant could demonstrate an error of law – whether the appellant could demonstrate excess or want of jurisdiction of the Full Bench of the Industrial Relations Commission Corporations Act 2001 (Cth), s 127(1)(a), s 127(2), s 127(4) Industrial Relations Act 1999 (Qld), s 74, s 76, s 78, s 79, s 80, s 242, s 255, s 265, s 340, s 341(1), s 342(1), s 342(2), s 349(1)(c), s 349(2)(a) Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, cited Law Partners Mortgages Pty Ltd (in liq) v Jeremy [2008] QCA 010, cited McDonald v Tinbilly Travellers Pty Ltd [2006] QIRComm 103, referred to McDonald v Tinbilly Travellers Pty Ltd [2006] QIC 63, referred to von Risefer v State of Queensland [2005] QCA 136, cited Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378, cited |
COUNSEL: | The appellant appeared on his own behalf Mr G C O'Driscoll for the respondent |
SOLICITORS: | The appellant appeared on his own behalf BCI Duells for the respondent |
[1] McMURDO P: This appeal should be struck out for the reasons given by Fraser JA.
[2] Such an order is exceptional: Law Partners Pty Ltd (in liq) v Jeremy.[1] It is, however, the appropriate order in the unusual circumstances pertaining in the present case. The appeal to this Court from the decision of the full bench of the Queensland Industrial Relations Commission (President Hall presiding) lies only on the ground of error of law or excess or want of jurisdiction: s 340 Industrial Relations Act 1999 (Qld).[2] The appellant has made lengthy written and oral submissions. He has effectively before this Court put the arguments he would make on his appeal. For the reasons given by Fraser JA, he has failed to raise in them any valid arguments to demonstrate his claimed errors of law or excess or want of jurisdiction. His contentions are plainly unmeritorious. The respondent to the appeal should be protected from the incurring of further costs on what is patently a hopeless appeal.
[3] The appeal and the appellant's related application should be struck out with costs. The respondent should have the costs of its application to strike out the appeal.
[4] FRASER JA: This is an application by the respondent to an appeal, Tinbilly Travellers Pty Ltd, for orders including that the appeal to this Court from a decision of the full bench of the Industrial Relations Commission by the appellant, Peter John McDonald, be struck out or permanently stayed.
The respondent's application
[5] The respondent's application expressed the ground for striking out as being that this Court has no jurisdiction. The expressed basis for a stay of the appeal was that it amounts to an abuse of process.
[6] The respondent's first outline of submissions in support of that application contended that the appeal was made "in contravention of s 349(1)(c)" of the Industrial Relations Act 1999 (Qld) ("the Act").
[7] This contention was abandoned by the respondent in its second outline of submissions. The respondent accepted that a right of appeal from the decision of the full bench to this Court was conferred by s 340 of the Act. It developed a new argument in support of its application, contending that the appeal is an abuse of process because it is manifestly hopeless.
[8] The appellant, who represented himself, responded to that argument both in his outline of submissions of 31 January 2008 and in oral argument at the hearing. The appellant did not seek an adjournment of the application. In his oral submissions he identified the points he wished to make in support of his appeal and in opposition to the respondent’s application. He accepted at the hearing that his written submissions contained all that he wished to say.
[9] In my opinion, the respondent’s contention that the appeal is manifestly hopeless must be accepted. To explain why this is so, it is necessary to refer to some earlier proceedings involving the same parties.
The appellant's application under s 74
[10] The appellant applied to the Industrial Relations Commission (“the Commission”) under s 74 of the Act, complaining that the termination of his employment on 13 May 2005 was harsh, unjust or unreasonable.
[11] Section 74 of the Act empowers employees to apply for reinstatement if it is alleged that the employee has been unfairly dismissed. If attempts at conciliation fail, under s 76 the Commission is empowered to hear and decide the application by making an order under s 78 (re-instatement or re-employment), s 79 (compensation) or s 80 (requiring the employer to pay the employee a monetary penalty, in addition to compensation or re-instatement).
The first decision of the Commission
[12] On 22 September 2006, the Commission, constituted by Commissioner Blades, dismissed the appellant’s application under s 74: McDonald v Tinbilly Travellers Pty Ltd [2006] QIRComm 103.
[13] According to the Commission’s findings, the appellant had been employed as a night auditor at the respondent’s backpacker hostel. He was underpaid, although the extent of the underpayment was in dispute. The respondent claimed that it was unable to afford to pay a night auditor at the rate appropriately payable for that position. It decided to restructure its business, with changes in the title and job description of the position held by the appellant. The appellant and a representative of the respondent discussed arrangements for redundancy, resulting in a deed of settlement.
[14] The respondent relied upon the deed of settlement as a complete defence to the appellant’s claim under s 74. It contended that the deed operated as a bar to any further proceedings by the appellant against it. The appellant replied by contending that the deed of settlement was invalid for a variety of reasons.
[15] The deed of settlement is reproduced in this, the first of the relevant Commission decisions. By the deed, the appellant agreed to accept a sum of money in full and final settlement of all claims and rights of action in connection with his contract of employment or its termination, or otherwise. He agreed that the deed might be pleaded in bar to any proceeding by the appellant against the respondent in that respect. The Commission found that after the deed was executed the respondent paid to the appellant, who freely accepted, the money payable by the respondent under the deed.
[16] The Commission held that, upon the proper construction of the deed, it brought to an end any claim the appellant might wish to raise about his contract of employment, whether by way of underpayment of wages or severance benefits or for unfair dismissal.
[17] The Commission rejected each of the arguments upon which the appellant relied to attack the validity of the deed. The appellant repeated those arguments in this Court. It is therefore appropriate to summarise those arguments and the reasons given by the Commission for rejecting each of them.
[18] First, the appellant claimed that he signed the deed under duress or “unconscionable coercion”. He alleged, amongst other things, that unless he had signed the deed one of his duties as an employee in the restructured position in the respondent’s employ would have been to clean the toilets, which, as the respondent knew, he was not prepared to do. The Commission found that the appellant was a business man who had operated numerous small businesses and been in charge of many staff; he was not labouring under any special disability in the negotiations; he had options available to him other than signing the deed; there was no unlawful threat or illegitimate pressure by the respondent; the appellant exercised a free choice when he chose to sign the deed and accept the money payable to him under it; and the respondent had not engaged in any duress or unconscionable conduct.
[19] Second, the appellant claimed that the deed was invalid because it referred to a contract of employment his purported signature of which, he alleged, was a forgery. The Commission declined to find that the appellant’s signature was forged. (It also concluded that, even had the written contract of employment been a forgery, that would not have rendered the deed ineffective.)
[20] Third, the appellant criticised the suggested requirement of the deed that his signature be witnessed by a Justice of the Peace, given that the employer’s “signature” was required merely to be witnessed. The Commission found that this objection did not affect the validity of the deed.
[21] Fourth, the appellant relied upon his evidence that, immediately after he signed the deed he told the respondent’s representative that it was invalid because of the absence of a company seal. The Commission held that the respondent’s representative had replied to that comment by telling the appellant that a seal was not required; they shook hands; the appellant said words suggesting that he accepted that a contract had been concluded; and the appellant freely accepted the money paid to him by the respondent pursuant to and in accordance with the terms of the deed. The Commission concluded that the parties intended the deed to be legally binding.
[22] Fifth, the appellant contended that the “Without Prejudice” heading on the deed rendered it worthless. The Commission held that the parties nevertheless intended the deed to be legally binding; the phrase “Without Prejudice” was an irrelevant and meaningless endorsement on the deed.
[23] The appellant’s sixth argument concerned the fact that the deed was signed only by one of the respondent’s directors, whom the deed described as being the respondent’s “authorised officer”. The appellant contended that the effect of s 127(1)(a) of the Corporations Act 2001 (Cth) was that the deed was invalid because it was not signed by two directors. The Commission pointed out that s 127(4) provides that s 127 does not limit the ways in which a company may execute a document. It held that the person who executed the document purportedly on the respondent’s behalf had implied (actual) authority to do so. The deed was therefore validly executed by the respondent. The Commission further held that “out of an abundance of caution and acting in response to the mischievous allegations being made by Mr McDonald about the deed” the respondent subsequently ratified the deed.
[24] Seventh, the appellant contended that the deed was invalid because “Tinbilly Travellers” was not an entity and could not execute the deed. The Commission found that the deed was executed by the respondent. It was of no moment that the respondent was described in the deed as “trading as Tinbilly Travellers”, which was a name under which the respondent did trade.
[25] Eighth, the appellant contended that the respondent could not contract out of its obligations to pay the appellant his award entitlements. The Commission held that when the deed was made there was a genuine dispute as to the amount due by the respondent to the appellant under the award. The Commission held that there was nothing in the relevant legislation that prevented a binding compromise of that dispute by the deed.
[26] The Commission concluded that the deed was effective and the appellant was bound by it. It dismissed his application under s 74.
The appellant's appeal to the Industrial Court
[27] The appellant appealed from that decision to the Industrial Court. It seems that the appellant repeated in the Industrial Court the arguments that he had advanced in the Commission.
The Industrial Court's decision
[28] The Industrial Court dismissed the appeal on 30 October 2006: McDonald v Tinbilly Travellers Pty Ltd [2006] QIC 63.
[29] The Industrial Court affirmed the substance of the Commission’s reasons for rejecting the appellant’s arguments. It concluded that no issue was raised about jurisdiction and that no error of law had been shown.
[30] In disposing of the appellant’s complaint about the effect of the Corporations Act 2001 (Cth), the Industrial Court described the appellant’s argument as being based on s 127(2). In fact, so the appellant submitted in this Court, his argument in the Industrial Court, like his argument in the Commission, relied upon s 127(1)(a).
[31] The Industrial Court rejected some additional arguments by the appellant. It held that no error was involved in the Commission’s interlocutory decision to hear the issues concerning the deed of settlement without also hearing all of the appellant’s grievances about his employment. It rejected the appellant’s complaint that he was denied the opportunity to lead the whole of his evidence on the topic of duress, finding that the evidence to which the appellant referred in that argument concerned a different issue. The Industrial Court also rejected the appellant’s argument that the objects of the Act in some way authorised the Commission to reform the law that applied in cases concerning existing legal rights.
[32] The appellant’s appeal was dismissed.
The appellant's application to recover unpaid wages
[33] On the same day that the appellant filed his application under s 74 of the Act complaining of unfair dismissal, he lodged an application seeking recovery of allegedly unpaid wages of $21,884.44 from the respondent. The hearing of this latter application was deferred until after delivery of the Industrial Court’s decision of 30 October 2006.
The second decision of the Commission
[34] The appellant’s application to recover unpaid wages was dismissed by the Commission, in this case constituted by Vice President Linnane, on 29 November 2006: McDonald v Tinbilly Travellers Pty Ltd [2006] QIRComm 133.
[35] The Commission found that the appellant's claim for recovery of unpaid wages must fail having regard to the terms of the deed of settlement. It accepted the respondent’s case that, upon the proper construction of the deed, it barred the appellant’s claim for wages.
The binding effect of the earlier decisions
[36] In the second decision of the Commission, Vice President Linnane found that he was bound by the decision of the Industrial Court which affirmed the first decision of the Commission that the deed of settlement was valid and binding upon the appellant.
[37] The Commission is a court of record, continued in existence by s 255. The Industrial Court is a superior court of record, continued in existence by s 242. In this matter, there was a right of appeal to the Industrial Court from the decision of the Commission upon the grounds of error of law or excess or want of jurisdiction: s 341(1).
[38] The Commission was vested with jurisdiction to “hear and decide” the applicant’s application under s 74: s 265. The Industrial Court was vested with jurisdiction to hear and decide the applicant’s appeal from the decision of the Commission: s 341(1) and Acts Interpretation Act 1954 (Qld), s 49A. The Act expressly provides that decisions of the Commission and the Industrial Court are “final and conclusive”: s 349(2)(a).
[39] The appellant’s contention in the earlier proceedings that the deed was invalid, and his grounds for that contention, raised issues that were fundamental to the decisions of the Commission and the Industrial Court. Despite the rejection of that contention and those arguments in both places, the appellant sought to repeat the very same contention, and the very same arguments in support of it, in his application against the same respondent to recover allegedly unpaid wages.
[40] In these circumstances, Vice President Linnane’s conclusion that the appellant was not entitled to re-litigate those issues is unsurprising: see Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, at 531 – 532 per Dixon J; Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, at [21] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ. For reasons which I mention below, however, it is not strictly necessary for this Court to decide that question.
The appellant's application to the full bench of the Commission from the second decision of the Commission
[41] The appellant was dissatisfied with the decision of the Commission of 29 November 2006. He applied for leave to appeal to the Full Bench of the Commission. Applications of that kind are authorised by s 342 of the Act. It provides, so far as is presently relevant:
"342Appeal from commission, magistrate or registrar
(1)A person dissatisfied with a decision of the commission (other than a determination under section 149 or a decision under section 273A) may appeal against the decision to the Full Bench, with the Full Bench’s leave, on a ground other than—
(a) error of law; or
(b) excess, or want, of jurisdiction.
(2)However, if a person wants to appeal against a decision of the commission both on a ground mentioned in section 341(1) and on a ground mentioned in subsection (1), the person may only appeal against the decision to the Full bench, with the Full Bench’s leave.
(3) The Full Bench must, and may only, give leave for subsection (1) or (2) if it considers the matter is important enough, in the public interest, to give leave."
[42] It follows from s 342(1) and s 342(2) that, whether that proposed appeal was to be based on error of law or excess or want of jurisdiction, or on any other ground, the leave of the Full Bench was required. The Full Bench was empowered to give leave only if it considered that the matter was important enough, in the public interest, to grant leave to appeal.
[43] At the hearing of the respondent’s application in this Court, the parties were given leave to provide to the Court a copy of the appellant’s application for leave to appeal to the Full Bench of the Commission. That document is very lengthy because it repeats at length the appellant’s arguments that had been rejected in the earlier proceedings.
[44] What is notable by its absence from that application is the identification of any supposed error of law in the second decision of the Commission that the appellant was bound by the earlier decisions.
The decision of the Full Bench
[45] The Full Bench concluded that there was no public interest in the proposed appeal. It refused leave to appeal, as it was obliged to do in light of that conclusion.
[46] There were two reasons given by the Full Bench for its conclusion that there was no public interest in the proposed appeal. The first reason was that it was inevitable that the respondent's defence that the appellant's claims were compromised by the deed of settlement would succeed. That was said to be inevitable because that issue was disposed of in a way that bound the appellant by a decision of the Commission in different proceedings between the same parties, which established that the deed of settlement was valid.
[47] The second reason given by the Full Bench for refusing leave was that, were leave to be granted, the proposed appeal would require merely an evaluation of the legal principles bearing upon the compromise or settlement of claims, as to which the Commission was not an appropriate forum and nor was the matter an appropriate vehicle for such a review.
The appeal to this Court
[48] In the appellant's appeal to this Court from that the refusal of leave by the Full Bench, he is confined to grounds of error of law or excess or want of jurisdiction. That follows from the terms of s 340. As it stood when the appellant commenced this appeal, s 340 provided[3]:
"340Appeal from court or Full Bench
…
(1)A defendant who is dissatisfied with a decision of the court in proceedings mentioned in section 251 may appeal to the Court of Appeal.
(2)The Minister, or a person who is dissatisfied with a decision[4] of the Full Bench, may appeal to the Court of Appeal only on the ground of—
(a) error of law; or
(b) excess, or want, of jurisdiction.
(3) Subsection (2) applies only if the constitution of the Full Bench included the president."
[49] The Full Bench included the president. It follows that the grounds of appeal open to the appellant are restricted to error of law or excess or want of jurisdiction.
[50] There is no basis for thinking that the Full Bench lacked jurisdiction to determine the appellant’s application to it for leave to appeal. The appellant cited The Queen v Kirby, Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 for the proposition that the judicial power of the Commonwealth could not be vested in a tribunal that also exercised administrative functions. That proposition is irrelevant. In the proceedings below, the Commission and the Industrial Court were not exercising the judicial power of the Commonwealth. They were exercising jurisdiction conferred upon them by State legislation. (Nor is the appellant’s contention that the Commission lacked jurisdiction readily reconcilable with the appellant’s claim to be entitled to orders from the Commission for the recovery of a money judgment.)
[51] The appellant has not asserted that there was any error of law in the full bench’s conclusion that the appellant was bound by the earlier decisions affirming the validity of the deed of settlement. It is for this reason that I earlier mentioned that it is not necessary for this Court to express a concluded view on that question.
[52] The appellant identified a large number of arguments which he sought to agitate in the appeal. With some exceptions, which I discuss below, they are the same arguments that were rejected by the Commission and the Industrial Court in the earlier proceedings. The mere repetition or elaboration of those arguments does not raise any issue about the correctness of the decision of the full bench to refuse leave to appeal.
[53] The appellant complained that the Industrial Court had incorrectly described the appellant's argument based upon the Corporations Act 2001 (Cth) as being referrable to s 127(2), rather than s 127(1)(a). The appellant’s argument was not rejected by the Industrial Court because of any error in the identification of the subsection upon which the appellant relied. It was rejected because the argument assumed that s 127 describes the only ways in which a corporation can make a valid contract. The appellant’s argument simply overlooks s 127(4), which falsifies that assumption. This claimed error is of no consequence.
[54] The appellant complained that the full bench refused the applicant's request to be allowed to give evidence. The appellant did not identify any evidence that could conceivably have had a bearing on the outcome of the application for leave to appeal to the full bench. There is no substance in this complaint.
[55] The appellant contended that the full bench erred at law by failing to provide "social justice". That was said to be contrary to the object of the Act expressed in s 3 to provide a framework for industrial relations that supports economic prosperity and social justice. This proposition also does not identify any arguable error of law in the decision that the proposed appeal was not sufficiently important in the public interest to justify leave.
[56] In this Court the appellant also argued that President Hall should have stood aside because he had constituted the Industrial Court when it made the earlier decision adverse to him. No application to disqualify President Hall was made when the full bench heard the appellant’s application. It is not possible to identify any arguable error of law in the full bench’s decision in this respect.
The appellant’s application in his appeal
[57] The appellant filed an application in his appeal. This application seeks (amongst other wide ranging orders) an order against the Commission that it re-hear the appellant’s original application under s 74. No appeal lies from a decision of the Commission to this Court. No other basis was advanced as a plausible justification for this application.
Appellant’s further submissions
[58] After the conclusion of oral argument, the appellant lodged several further documents in the registry, including further outlines of arguments and extracts of evidence apparently adduced in the Commission and said by the appellant to support those arguments. These arguments largely repeat and in some cases elaborate upon those rejected above. No leave was sought by or given to either party to make further submissions. It is inappropriate to deal with them further in these reasons.
Disposition
[59] The Court will not readily conclude that there is no real question in an appeal. It will exercise particular caution where the appellant is self represented. If there is any real question in an appeal, it must be resolved in the ordinary way. This is an exceptional case. The length of these reasons is not attributable to the existence of any real question of law. Rather, it is a reflection of the lengthy history of the proceedings below and the number of arguments advanced by the appellant.
[60] There is no real question in the appeal. It is doomed to fail. The appeal has not progressed very far. Further prosecution of the appeal would involve the respondent in significant cost. The respondent should be protected from vexation by the continuance of this hopeless proceeding: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 84; Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 392-393.
Orders
[61] I would order that the notice of appeal and the appellant's application be struck out.
[62] The appellant should be ordered to pay the respondent's costs of the appeal and of the respondent's application.
[63] MACKENZIE J: I agree with the reasons given by Fraser JA for concluding that there are no prospects of the appeal succeeding. I agree with the orders he proposes. I also agree that it is only in the clearest of cases that the Court should entertain an application of this kind (Law Partners Mortgages Pty Ltd (in liq) v Jeremy [2008] QCA 136; von Risefer v State of Queensland [2005] QCA 118). Unless it is a case in that category, the appeal should be disposed of in the usual way.
Footnotes
[1] [2008] QCA 10; CA No 240 of 2008; 8 February 2008.
[2] It is common ground that s 340(3A) Industrial Relations Act 1999 (Qld) , which took effect only from 1 January 2008, has no application to the present appeal.
[3] Section 340 was subsequently amended in a way which is more restrictive of appeals. The respondent disclaimed reliance on that amendment.
[4] The respondent did not contend that the refusal of leave to appeal was not a “decision” within the meaning of this provision.