Bailey v Marinoff 125 CLR 529; Graziers Association of New South Wales v Australian Legion of Ex-Servicemen and Women Vol 49 SR 301; Allchin v Commissioner of Police

Industrial Relations Commission (NSW)|2012-03-30|Before: The J

FORMTEXT Respondent's representative (Respondent) File Number(s): TAB 1143 of 2011

Orders 3The Transport Appeals Board therefore orders that: (1)The Appeal is allowed; (2)The decision of RailCorp to dismiss Mr Arnusch is set aside; (3)Mr Arnusch is suspended without pay for a period of 26 weeks commencing from the end of the 5-week notice period, for which he was paid, that is from 27 September 2011 to 26 March 2012; (4)Mr Arnusch is to be reinstated to his position of Customer Service Team Leader on and from 28 March 2012; (5)A warning is to be placed on Mr Arnusch's employment record. 4The Respondent forwarded correspondence to Mr Arnusch on 23 March 2012 instructing him to attend for work at North Ryde on 28 March 2012. 5Correspondence was forwarded by Mr Sapuppo, Solicitor for the Appellant, to Ms Hannah Pugh, H R Business Partner Sector, at Central Railway Station, dated 27 March 2012, confirming that Mr Arnusch will be reporting for work at 6 am on the following morning to Central Railway Station where he has been working for the past 29 years until the matter is listed before the TAB for further clarification. 6Correspondence was received from Mr Sapuppo, dated 28 March 2012, advising that his client reported for work at 5.45 am that morning. The Board was advised that, at about 7.30 am, the Station Manager, Mr Zaid Derbas, advised Mr Arnusch that there was no job for him at Central Railway Station and advised him to contact his Solicitor to clarify the orders of the Board. 7On 29 March 2012, Ms Robinson, Advocate, General Counsel and Governance, Legal Services Division, forwarded an email to the Board objecting to a relisting on the basis that the Board does not have the power to do so as the matter is functus officio. 8The matter was listed for report back at 12 noon on 30 March 2012 at which time there was no appearance by, or on behalf of, the Appellant. A call to Mr Sapuppo revealed that he was not aware of the listing. An email was forwarded to Mr Sapuppo on 3 April 2012 advising that RailCorp's representative had made submissions in the matter in support of the above contention, had relied on named authorities and had advised that, contrary to the impression provided to the Board, the Appellant had been provided with work in his classification at another Station but the Appellant had declined to take up the position. 9A response was received from Mr Sapuppo dated 4 April 2012 advising that RailCorp had made a token effort to reinstate Mr Arnusch; the effort was not within the intention of the order and further orders can be made for the practical implementation of an existing order. Mr Sapuppo pointed out that Mr Arnusch had been employed at Central Railway Station for 29 years prior to his dismissal. He suffers from a skin medical condition which makes him unsuitable for work at underground railway stations such as North Ryde. The Board was advised that the condition is known to the Respondent and is documented in its files and, in fact, Mr Arnusch had to be transferred back to Central Railway Station from Town Hall Station some 15 years ago because of that condition. In addition to the above, the Appellant was aware that there were up to five vacancies currently at Central. In conclusion, Mr Sapuppo contended that the Respondent was not working within the spirit of the reinstatement order and was seeking to punish Mr Arnusch despite the outcome of the arbitration proceedings.

SUBMISSIONS 10The matter was listed for submissions on 21 June 2012 at which time RailCorp relied on the submissions made on 30 March 2012 as summarised below. 11Ms Robinson submitted that RailCorp had complied with the orders made by the Board on 8 February 2012 as Mr Arnusch was reinstated to the position of Customer Service Team Leader. As the Board's orders were silent as to location, Mr Arnusch was transferred, in accordance with the Respondent's internal transfer procedure, to work at North Ryde. It was pointed out that Mr Arnusch has been directed, by daily letter, to attend to his position at North Ryde but he has continued to refuse. 12Ms Robinson submitted that, pursuant to s 23 of the Transport Appeal Boards Act, the Order is final and the Board does not have the power to revisit its orders. It sought to rely on three authorities in support of that contention. 13Firstly, in the High Court judgment in Bailey and Marinoff 125 CLR 529 [at 530] his honour, Chief Justice Barwick held that: ....Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed... 14Secondly, in the Supreme Court of NSW decision in Graziers Association of New South Wales v Australian Legion of Ex-Servicemen and Women 49 SR (NSW) 300 [at 303] the Bench held: The general rule, as established by the authorities to which reference is made in Ex parte Hassell (3) is that "when an arbitrator or judicial officer has given his award or adjudication, as the case may be, he is functus officio, and cannot add to, amend, or detract from what he has done... This rule applies to judges exercising judicial authority conferred by statute, unless otherwise provided by statute. Thus, it applies to District Courts. 15Thirdly, in Alchin v Commissioner of Police [2009] NSWIRComm 113, his Honour, the President established in that decision that the doctrine of functus officio also applies in the Industrial Relations Commission of NSW. His Honour, Boland J President held: 19 Having made an order dismissing the appeal it would not be open to the Full Bench to re-open the matters that were the subject of the appeal: see the discussion of the authorities in this respect in Surfing Hardware International Holdings Pty Limited and Ors v William McCausland and Anor (No 6) [2007] NSWIRComm 285; 169 IR 282 commencing at [26], which although referring to the powers of the Court apply with equal force to the Commission, in my opinion, especially in relation to police matters where the Commission is required to be constituted by judicial members: s181K of Police Act. Finality of litigation is just as important in matters such as the present as it is if the matter had been before the Court. 24 There was clearly no basis for her Honour to entertain Mr Allchin's application that sought to vary her substantive orders. There was no legal basis for her Honour to re-visit her decision and, even if a proper case had been made out, to vary her decision or her orders. Her Honour had perfected her orders and she was functus officio.... 16It was submitted on behalf of the Appellant that the effect of the Orders was to reinstate Mr Arnusch to his former position of Customer Service Team Leader. Therefore, there was no doubt that the intention of the order was to reinstate him to the original position that he would have occupied prior to the dismissal, a position that he has held for 29 years. 17RailCorp had notice that the Appellant did not accept the Respondent's interpretation of the Orders since 27 March 2012. 18The Appellant submitted that the Board is not being asked to review its decision. It is being asked to clarify its orders and some court orders are subject to the slip rule - in other words, further orders can be made to implement the intention of the true order. 19It was pointed out that the authorities relied on by the Respondent can be distinguished from the current proceedings as those authorities involved cases in which attempts were being made to obtain decisions from the Tribunal which were different or obtain a review of the decisions. 20The Appellant also relied on the judgment in Allchin in support of its submission that the Board is not functus - Full Bench may not re-open. Interlocutory decisions may be reviewed .... and Rules 38 and 151 of the Industrial Relations Commission Rules 1996 contain the familiar slip rule ... The slip rule, for instance, is concerned to ensure that the true intent of the Court be achieved by the orders which the Court makes: Mukherjee v WorkCover Authority of New South Wales (No 2) [2008] NSWIRComm 86; 173 IR 176 at [26]..... 21The Appellant pointed out that Mukherjee was a case in point in that the Appellant in these proceedings is also not seeking for the Board to review its own decision. Rather, the Board is being asked to implement its decision because it appears that it is not clear in the mind of the Respondent. 22The Appellant pointed out that he has worked at Central Railway Station for the past 29 years - it was an above ground station and he earned a base salary plus overtime and penalties. North Ryde Station is an underground station. In addition to that, it attracts lower pay and conditions. He has medical certificates attesting to the fact that he cannot work at North Ryde. The Respondent was aware that when he was transferred to Town Hall Railway Station, an underground railway station some 17 years ago, he developed a very bad skin allergy and had to be sent back to Central. 23The Appellant pointed out that if the Board fails to clarify its order then it is leaving the door open for the Respondent to exploit its order. 24In conclusion, the Appellant urged the Board to issue further orders clarifying that Mr Arnusch be reinstated as Customer Service Officer at Central Railway Station. 25In its reply submission, the Respondent referred to rule 36, point 1 (7) of the Civil Procedure Rules which provides that the Court may at any time correct any clerical mistake or an error arising from an accidental slip or omission in a judgment. 26It was pointed out that the Board cannot find a dismissal unlawful. It can simply decide on an alternative penalty and order reinstatement. 27The Respondent referred to the correspondence forwarded to the Appellant on 27 March wherein it was confirmed that the salary and working conditions he enjoyed at Central would remain unchanged at North Ryde. 28The Respondent recalled that, at the original hearing, the Appellant sought the reinstatement of the Appellant - an order regarding location was not sought. The Board ordered reinstatement as sought by the Appellant and the Respondent effected that order. On that basis, it was concluded, there was no clerical mistake or error arising from an accidental slip or omission.

CONSIDERATION 29The present case can be distinguished from those referred in the principles enunciated in the Respondent's authorities in that the Board is not being asked to review its own Orders. The Board is being asked by the Appellant to apply the slip rule in order to express accurately the intention of the Board. 30The Slip Rule is defined in the Legal Dictionary as "A rule by which a Court can very exceptionally reopen a published order but only to correct an accidental slip or omission such as a clerical error". 31Rule 38 of the Industrial Relations Commission Rules 1996 contains the following slip rule: RULE 38 CORRECTION OF ORDERS OR AWARDS (38) (1) .... (38) (2) [Correction of mistake or error] Where there is a mistake in an order or award, arising from an accidental slip or omission, the tribunal, on application by any party or of its own motion, may at any time correct the mistake or error. (38) (3) [Corrections at any time] A tribunal, on application by any party or of its own motion may, at any time, for the purpose of carrying out its intention and to express accurately its meaning, correct any order or award. 32Rule 151 replicates the above Rule as follows: RULE 151 MINUTE OF JUDGMENT OR ORDER 151 (1) [Correction of mistakes] Where there is a mistake in an order or decision, arising from an accidental slip or omission, a tribunal, on application by any party or of its own motion, may at any time correct the mistake or error. 151 (2) [Correction to accurately express meaning] A tribunal, on application by any party or of its own motion, may, at any time, for the purpose of carrying out its intention and to express accurately its meaning, correct any order or decision. 151 (3) [Power] The power in this Rule is additional to the power in Rule 38. 33It is patently obvious, therefore, that the Board is empowered to make changes to its orders in the circumstances described in the Rules above. 34The provisions of the Civil Procedure Act 2005 are also applicable. Section 56 of the Act relevantly provides: a) 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and order of the court. 35It was held in Newmont Yandal Operations Pty Ltd v The J Aron Corp & The Goldman Sachs Group, Inc (2007) 70 NSWLR 411 at [116] that, by reason of the overriding objective in the CPA rules, that is, "to facilitate the just, quick and cheap resolution of the real issues...in the proceedings", words such as "error" and "correct" in the slip rule should not be given a narrow interpretation. 36Both parties relied on the judgment of his honour, Boland J, President in Allchin. His honour recognised in that judgment that "The slip rule... is concerned to ensure that the true intent of the Court be achieved by the orders which the Court makes"[20]. 37The slip rule extends to matters overlooked: Re Walsh (1983) 83 ATC 4147 and also extends to a correction made in order to carry into effect the actual intention of the judge and/or to ensure that the order does not have a consequence which the judge intended to avoid adjudicating upon: Newmont Yandal at [114], [116], [185] and [194]. It was not a deliberate decision of the Board that Mr Arnusch be reinstated to a site other than Central Railway Station. 38The original appeal by Mr Arnusch was against the decision of the Respondent to terminate him from employment as a Customer Service Officer at Central Railway Station. The Board held that disciplinary action against Mr Arnusch was warranted but that termination, the most extreme of the measures available to the Respondent, was too harsh. The Board substituted another penalty from the list of penalties available to the Respondent - suspension from duty without pay for a period of twenty-six weeks. His reinstatement to another location was a consequence which the Board did not intend. 39It is noted that the options available to the Respondent does not include a transfer to another Station. 40By transferring Mr Arnusch to another location after nearly 30 years' service at Central Railway Station, the Respondent has imposed yet another penalty on Mr Arnusch and laid it at the feet of the Board by submitting that it was open to it to do so on the basis that the Board's orders were silent in relation to the location to which he is to be reinstated. 41For that reason, the Board needs to exercise its inherent jurisdiction to correct its Orders as they do not truly represent what it intended: Newmont Yandal which was reinstatement to his position as Customer Service Leader at Central Railway Station. 42The Transport Appeals Board corrects its Orders made on 8 February 2012 by the insertion of an omission for the purpose of carrying out its intention and to express accurately its meaning. 43Thereafter, any requirement by the Respondent to transfer Mr Arnusch would need to be undertaken in accordance with the Respondent's statutory/award obligations, including its obligations under occupational health and safety legislation.

ORDER 44The Transport Appeals Board hereby re-issues order (4) as follows: (4) Mr Arnusch is to be reinstated to his position of Customer Service Team Leader at Central Railway Station on and from 28 March 2012.

COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2016

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