Case: Rodway v The Queen [1990] HCA 19 ; (1990) 169 CLR 515
Outcome: applied
In my opinion, s 31A applies to the present strikeout application. The provision is of a procedural rather than substantive nature. In Rodway v The Queen [1990] HCA 19 ; (1990) 169 CLR 515 the High Court was concerned with the appellant's convictions for certain sexual offences. At the time of the alleged offences the Criminal Code (Tas) required corroboration of the evidence of the complainant but by the time of the trial that requirement had been repealed. The High Court upheld the ruling of the trial judge (Neasey J) and the Court of Criminal Appeal that the repealed provision did not apply. After citing the statement of Dixon CJ in Maxwell v Murphy [1957] HCA 7 ; (1957) 96 CLR 261 at 267, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ said at 521: 'But ordinarily an amendment to the practice and procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity." 9 In the present case the language of the provision clearly directs attention to the time at which the strikeout application is made (where the party "is defending the proceeding or that part of the proceeding"). The substantive rights of Ms Duncan which came into existence in October 2005, eg her right to damages for any breach of contract, have not been affected. The present case is not in principle distinguishable from Rodway . 10 The statement of claim alleges in par 1 that Ms Duncan was responsible for the day to day management of the Service and had been its Director since appointment by the first respondent on or about 24 September 2001. It is said that at all material times Lipscombe Child Care was engaged in trade or commerce by conducting the business of a child care service. 11 Paragraph 5 alleges a contract of employment (the Contract) made on 24 September 2001 whereby Lipscombe Child Care retained the applicant as Director of the Service. In par 6 a number of terms of the Contract are pleaded, including: "(d) That in the event of a grievance, a grievance procedure set forth in a document entitled Grievance Policy would be followed. The Grievance Policy formed part of the Contract of Employment and provided, inter alia : (i) That the grievances should be, if possible, resolved informally with respect for other employees being maintained at all times; (ii) Confidentiality would be maintained at all times and formal and informal discussions with respect to the employee would be conducted in strict confidence; (iii) Disclosure information relating to the grievance would be limited to those people legitimately involved in the process, namely the Complainant and the Respondent or its Delegate: (iv) If the grievance could not be resolved on an informal level a moderator would be involved and where appropriate such moderator would be drawn from the Lipscombe Child Care Service Board of Directors: (v) At the conclusion of the formal grievance procedure, the processes and outcomes would be recorded in separate and confidential grievance files."