Beck v Commissioner of Police

Industrial Relations Commission (NSW)|2016-07-22|Before: Walton J

Solicitors: McCabes Lawyers Pty Ltd (Respondent) File Number(s): 2016/19953 (formerly IRC 1040 of 2015) Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Jurisdiction: Industrial Relations Commission of New South Wales Citation: [2015] NSWIRComm 1023 Date of Decision: 27 November 2015 Before: Newall C File Number(s): IRC 1457 of 2010

INTERLOCUTORY DECISION

The Full Bench has before it an application for leave to appeal and appeal by Aaron Beck from the decision of Commissioner Newall in Beck v Commissioner of Police (No 3) [2015] NSWIRComm 1023; (2015) 254 IR 186 (27 November 2015). That decision determined the application by the appellant for review of an order under s 181D of the Police Act 1990 ('the Police Act') which removed the appellant from the NSW Police Force. Newall C dismissed the application.
At a directions hearing before the President, Walton J, on 19 April 2016, the appellant foreshadowed an application that the Full Bench do the following: 1. refer or transfer the "contempt issue" to the Supreme Court of New South Wales; and 2. grant a "stay in proceedings" until the "contempt issue" had been dealt with. (Hereinafter, 'the first application' and 'the second application', respectively, or when referred to jointly, 'the applications'.)

Summary of the Issues

The appellant alleged that there was a contempt of the Commissioner at first instance by the respondent as a result of the non-production by the respondent of a document which was treated by Newall C as being the subject of a call for production or a subpoena. Reference was made, in that respect, to an exchange which occurred at the conclusion of the two day hearing of the appellant's application (on 17 November 2015) as follows: COMMISSIONER: Ladies and gentlemen, I propose to reserve my decision in this matter. It's not been a long case and normally I would try and give an ex tempore decision in a matter of this length, but there are a number of complexities about this matter, a number of documents I wish to review again and consider again with the benefit of the submissions that have been put to me today. I'm sorry for that, but I think to do justice to the thing properly I have to reserve and consider the matter and provide reasons for whatever outcome emerges from that. There is nothing else that ought be said for your part, Mr Hutchings, about the matter? HUTCHINGS: No your Honour. COMMISSIONER: Mr Beck, I've heard you, I think, on everything you want to say-- APPLICANT: There's just one thing. The document, the notice of intent in April 2007, is it possible for that to be called for and added into an exhibit, because we don't have that, I don't have that document, and that's the evidence referred to in all my affidavits in relation to notice of when I was issued a 181D notice of intent in April, and that's the only document that it would appear that is able to prove that I was issued a notice of intent in April 2007. Unless, of course, the transcripts, they detail exactly what that document entails. COMMISSIONER: Well I can read the transcripts for myself and form my own views about that. APPLICANT: Yes. COMMISSIONER: Again I'm constrained by the Act in questions, in new evidence and the like. On one view, Mr Hutchings, a call has been made. HUTCHINGS: Well, I don't have-- COMMISSIONER: And I'm anxious to do every possible thing to be fair to Mr Beck, so I'll treat that as a call. HUTCHINGS: Your Honour, I have nothing to produce in answer to the call. COMMISSIONER: Very well. Well I'll do the best I can with the material I've got then. That's the answer, Mr Beck, I've treated your application as in effect a subpoena and I've served that subpoena through me immediately upon the Commissioner, and the answer is that nothing is produced. APPLICANT: Thank you, your Honour. COMMISSIONER: I cannot do more than that, but I have attempted to assist you in that regard by calling for it, by treating your call as a legal call for the document and acting thereupon it. APPLICANT: Thank you.
The document referred to by the appellant in that extract, "the notice of intent in April 2007", was referred to in submissions before us as "the Notice of Intent to issue s 181D Commissioner's Loss of Confidence dated April 2007". Whilst the document is not before us in these proceedings, for convenience of identification of the issues, it shall be hereinafter referred to as the 'Notice of Intent'.
The appellant contended that the failure by the respondent to produce the Notice of Intent, which under the call constituted a contempt of the Industrial Relations Commission of NSW ('the Commission'), should be dealt with by the Supreme Court of NSW by a referral or transfer of that question or allegation to that Court by the Commission. The appellant also sought what may be described as a "stay in proceedings" on the grounds that the "contempt issue" should be dealt with in the Supreme Court prior to any appeal being heard by this Full Bench.
The issue of contempt of court was described in the application for leave to appeal and appeal at paragraph J.2 in the following terms: On 17 November 2015 in proceedings between Beck v Commissioner of Police in the Industrial Relations Commission at Sydney, Commissioner of Police refused to produce evidence that was the subject of a subpoena [call from court], that evidence identified as being the 'Commissioner's Notice of Intent to issue 181D Commissioners Loss of Confidence dated April 2007'.
It may be noted that the appellant raised another issue which he also, but separately, categorised as a "contempt issue". This concerned directions issued by the Commissioner of Police during the course of Supreme Court proceedings brought by the appellant. The appellant indicated that issue did not form part of or relate to the applications. (This distinction resulted in the respondent referring to the issue of contempt relevant to the applications as the "second category of contempt".)
The respondent contended that the Commission, as presently constituted, did not have power to determine (procedurally or otherwise) an allegation of contempt of the Commission (the appellant did not wish to be heard on those legal questions). In the event that the appellant initiated proceedings for contempt of the Commission either before the Supreme Court of NSW or the Industrial Court (the respondent not accepting there was a proper basis to initiate any such proceedings), then the respondent would not oppose a stay of the appeal. This was put on the basis of an avoidance of multiple proceedings and issues of cost and time. If the appellant did not initiate such proceedings then, it was submitted, the appeal should proceed with the question of leave to appeal being heard at the outset.

Material before the Full Bench for the Purposes of Determining the Applications

The Full Bench had before it the following documents produced by the appellant for the purpose of determining the applications: 1. Application for leave to appeal and appeal filed 18 December 2015; 2. Appellant's written submissions filed 4 April 2016 attaching two documents; 3. Appellant's further written submissions filed 15 April 2016 which contained a folder of materials including an affidavit of the appellant sworn 14 April 2016 and 23 annexures (one of which is the transcript of proceedings before Newall C of 16 and 17 November 2015); 4. Appellant's written submissions in reply filed 3 June 2016 with an affidavit of the appellant sworn 3 June 2016 with one attachment; and 5. Appellant's further written submissions in reply filed 13 July 2016.
The Commissioner made two written submissions: 1. Outline of respondent's submissions - second category of contempt and related procedural matters filed 20 May 2016 also attaching a transcript of proceedings before Newall C on 17 November 2015; and 2. Outline of respondent's submissions in reply - second category of contempt and related procedural matters filed 1 July 2016.
The Full Bench received substantial supplementary oral submissions from both parties.

Background to these Proceedings

The appellant was a serving police constable when, in November 2006, he was served with a court attendance notice charging him with conducting himself in an offensive manner in a public place on 25 September 2006, an offence under s 4(1) of the Summary Offences Act 1988.
On 23 January 2007, the Advisory Panel of the Commissioner of Police, chaired by Assistant Commissioner Catherine Burn, met to consider what recommendation it should provide to the Commissioner with respect to the appellant in those circumstances.
The Commissioner's Advisory Panel's Outcome Form included the following entries: Commissioner's Advisory Panel Issues Considered and Recommendations: Mandatory S181D Referral (Executive Summary) - Offensive Conduct (P0604588) Note: As this matter is subject to S181D notification to the Commissioner - No Management Action should occur until a determination is reached by the Commissioner. If the Commissioner does not wish to proceed as a 181D Loss of Commissioner's confidence, it is recommended that the officer be the subject of the following S173 Reviewable Action: 1. Reduction in increment from Constable Level 5 to Constable Level 3. If S173 Reviewable action is taken the Commander, Kings Cross LAC is to liaise with Legal Services to assist in preparing the 'Show Cause Notice'. The Commander, Kings Cross to serve the S173 'Show Cause Notice' on the officer. The Panel noted the following information in determining this matter: - Benchmarks; witnesses in support of conduct; inappropriate behaviour in full view of members of the public; listed for mention at Downing Centre Local Court on 21 February 2007. The Commander, Kings Cross LAC to inform the officer of the recommendation of the Panel. Welfare Services to be offered to the officer. (The Commissioner's Advisory Panel shall hereinafter be referred to as 'the Panel'.)
Subsequent to the meeting of the Panel, and following representations to the Director of Public Prosecutions, on 21 February 2007, the charge against the appellant of conducting himself in an offensive manner in a public place was withdrawn and dismissed.
Following the withdrawal of the charge, according to the appellant, in April 2007, the Commissioner of Police issued the appellant with the Notice of Intent. He contended the Notice of Intent was notification from the Commissioner that he decided not to opt for the recommendation of the Panel, but to proceed with dismissal proceedings under s 181D of the Police Act having regard to the conduct considered by the Panel.
The appellant has consistently contended that the decision of the Commissioner to proceed under s 181D of the Police Act and, in particular, to issue the Notice of Intent was contrary to the recommendation of the Panel. For example, at paragraphs H1.d.iii and iv of the application for leave to appeal and appeal, the appellant referred to the Panel's Recommendation and asserted that "Mr Scipione rejected that recommendation and nominated the appellant for a 181D notice in April 2007".
On 16 August 2007, the appellant's increase in rank from level 5 Constable to level 1 Senior Constable was deferred.
In a letter to the appellant dated 21 May 2010 from McCabe Terrill Lawyers, on behalf of the Commissioner of Police, it was stated, in relation to his non-promotion in 2007, that "there was a sustained finding which generated a nomination under S-181d of the Act". The solicitor's letter had attached to it a document headed "Promotion to the Rank of Senior Constable" dated 16 August 2007. In box 4 "Recommendation for Promotion" is the hand written comment "Not recommended at this time pending finalisation of IRP/181D nomination". This part of the document identified the Command as Kings Cross and was signed by "Jenny Hayes, A/Supt". The letter also stated that the reason the appellant was not promoted had nothing to do with s 173 of the Police Act.
Section 181D(3)(a) of the Police Act provides that the Commissioner of Police must, before making any order under s 181D(1), provide the police officer, the subject of consideration under the provisions of s 181D, with a notice setting out the grounds on which the Commissioner does not have confidence in the officer's suitability to continue as a police officer.
On the submissions of the appellant, the Notice of Intent pre dated the issuing of any s 181D(3)(a) notice. There was no reference to the issuing of such a process under the Police Act. Nor did there appear to be any reference in the administrative guidelines applying to the initiating of proceedings under s 181D produced by the appellant with his submissions. Nevertheless, as will be observed from [6] to [9] of this decision, the document became the subject of some controversy in the proceedings and is now central to the appellant's contentions as to contempt.
On 12 October 2007, the Commissioner of Police issued a notice to the appellant under s 181D(3)(a) of the Police Act informing him that the Commissioner was considering whether to form a view that he did not have confidence in the appellant's suitability to continue as a police officer and giving him an opportunity to make written submissions in relation to his proposed removal. That notice was signed by A P Scipione, Commissioner of Police.
The appellant responded in writing to the s 181D Notice on 3 December 2007.
On 10 January 2008, the appellant was issued with a Commissioner's Warning Notice ('the Warning Notice') by David Owens, Acting Commissioner of Police. The Warning Notice contained the following statement: "Due to the seriousness of the matters raised in this Warning Notice, your Commander is also considering other action to be taken as an adjunct to my written warning".
The Warning Notice was apparently issued in lieu of the Commissioner of Police proceeding with the Notice issued under s 181D. The issue was remitted to the Local Area Commander who, in turn, commenced processes under s 173 of the Police Act.
On 30 January 2008, the appellant was issued with a notice under s 173(5) of the Police Act ('the s 173(5) Notice'). The appellant responded in writing to the s 173(5) Notice on 25 February 2008. In that response (at page 41), the appellant referred to the "S181D notice of intent" which he submitted had been issued in April 2007. The outcome of the s 173 process was that the appellant was reduced in increment from Constable level 5 to Constable level 3.
In October 2008, the appellant commenced proceedings in the Supreme Court against the State of New South Wales for malicious prosecution. The appellant also commenced proceedings in the Supreme Court seeking prerogative relief in respect of the decisions to defer his promotion and reduce his pay level. Both proceedings were heard together, it being agreed that the evidence in one was to be regarded as evidence in the other.
In his written submissions in reply filed on 3 June 2016, the appellant contended as follows: Supreme Court Transcript details where reference in cross examination by Mr Hutchings of the appellant refers specifically to the "Notice of Intent" (April 2007) being issued, the appellant signing that document and was notification of the appellant's nomination for a s.181D Commissioners Loss of Confidence in April 2007.
In the appellant's written submissions filed on 4 April 2016, he contended, under the heading, "Document the subject of allegation of Contempt dated April 2007 was produced in 2012 by Commissioner of Police advancing his own, false case in the NSWSC", the following: This very same document, detailed in the Supreme Court transcripts was produced as evidence by the Commissioner of police to successfully demonstrate that the appellants promotion to senior constable, denied by Jenny Hayes 7 August 2007 was justified, on account the appellant could not be promoted having been nominated for a "Commissioners Loss of Confidence" April 2007 and the appellant notified in April 2007
Further, in his written submissions in reply (filed on 3 June 2016), the appellant contended as follows: These SC transcripts detail Mr Hutchings himself producing that document advancing the Commissioner of Police false case that the appellant had been notified of the denial of his promotion to Senior Constable and submitting to the Supreme Court the denial of that promotion by Jenny Hayes was lawful on account the appellant was nominated for a s.181D loss of confidence.
On 25 August 2010, a fresh notice under s 181D was served on the appellant and, on 30 November 2010, the appellant was removed from the NSW Police Force. On 10 December 2010, the appellant filed an application for relief in relation to unfair dismissal in the Industrial Registry. That application was treated as an application for review of an order under s 181D of the Police Act.
On 10 December 2012, Adams J entered a verdict for the appellant in the common law proceedings and awarded the appellant damages totalling $166,814 plus costs (Beck v Commissioner of Police New South Wales [2012] NSWSC 1483 (10 December 2012)). No reference is made in the judgment of Adams J to the Notice of Intent.
On 13 December 2013, the Court of Appeal (Beazley P, Barrett JA and Ward JA) upheld an appeal against the judgment and orders of Adams J and remitted the matter to the Common Law Division for re-hearing (Commissioner of Police v Beck [2013] NSWCA 437 (13 December 2013)). Again, no reference was made in the judgments of the Court of Appeal to the Notice of Intent. The matter was not re-heard in the Common Law Division and, according to an affidavit sworn by the appellant on 30 January 2015 in the first instance proceedings, he abandoned his Supreme Court proceeding.
For reasons which it is unnecessary to set out in detail in this decision, the substantive hearing of the appellant's application for review of an order under s 181D of the Police Act did not occur until 2015.
In response to a Notice of Motion filed by the appellant on 30 January 2015, Kite AJ, on 13 February 2015, granted the appellant leave to serve the respondent with a Notice to Admit Facts and a Notice to Produce.
On 16 April 2015, the appellant filed and served on the respondent a Notice to Produce. That Notice to Produce sought, inter alia, production of "All documents and electronic records regarding complaint C@tsi P0604588 - Offensive conduct on 25 September 2006".
In proceedings before Kite AJ on 1 May 2015, the appellant made the following statement: As a result of that original 181D notice I was referred to the Commissioner's advisory panel, that's when the 173 came into effect. And then I was automatically referred back to the panel for everything single mistake or complaint on account of the original notification in April 2007. It all falls over your honour and this is what I have been arguing for so long …
In his outline of submissions in reply filed on 3 July 2015 the appellant stated at paragraph 27: Deputy Commissioner Andrew Scipione acted beyond power in his review of the Commissioners Advisory Panel recommendation pursuant to s.181H(3) Police act in April 2007, this recommendation required to be reviewed and a decision made by the Police commissioner at the time, Ken Moroney.
On 28 July 2015, the appellant's application was allocated to Newall C to hear and determine.
In proceedings before Newall C on 10 August 2015 the appellant stated: He (Andrew Scipione) was the Deputy Police Commissioner when he originally nominated me as a 181D, and that original nomination in April 2007 carries all the way through to the actual 181D order…
On 13 August 2015, Newall C made certain directions as to the filing and serving of evidence. Those directions required that the respondent file and serve his evidence by close of business on 11 September 2015 and the appellant file and serve any evidence in reply by close of business on 25 September 2015.
On 25 September 2015, Newall C made a ruling that any evidentiary material that was not filed by the respondent in accordance with directions made by the Commission on 13 August 2015 would not be admitted into evidence. Newall C refused the appellant's application for an extension of time to file and serve any evidence in reply (Beck v Commissioner of Police [2015] NSWIRComm 1015).
On 28 October 2015, Newall C rejected an application by the appellant that the Commission give leave under s 181H of the Police Act for the members of the relevant Commissioner's Advisory Panel to be compelled to attend and give evidence in the proceedings. Newall C then ruled in favour of the appellant's application to have admitted into evidence the transcript of evidence given by certain witnesses in the Supreme Court proceedings before Adams J. The Commissioner also granted leave to the appellant to issue summonses to produce documents and to attend to give evidence on Senior Constable Matthew Rispen and Constable Hugh Kimber but declined to grant such leave in relation to former Commissioner Ken Moroney and Assistant Commissioner Mark Murdoch (Beck v Commissioner of Police (No 2) [2015] NSWIRComm 1019).
The substantive hearing of the appellant's application for review of an order under s 181D of the Police Act proceeded before Newall C on 16 and 17 November 2015
On 16 November 2015, the appellant tendered into evidence five affidavits sworn by himself together with numerous annexures, as well as affidavits sworn by three other persons. The appellant also called Constable Rispen as a witness to give oral evidence.
During those proceedings the appellant argued that "Mr Scipione" had received a recommendation concerning the appellant from the Panel but had "nominated" the appellant for a s 181D Notice in April 2007, prior to Mr Scipione becoming the Commissioner of Police but at a time when he was still a Deputy Commissioner. The recommendation of the Panel is set out at [15] above.
The appellant's submission to Newall C was that, at the time when "Mr Scipione" was considering the recommendation of the Panel, and when he issued the appellant with the Notice of Intent, Mr Scipione was not the Commissioner of Police. The appellant stated before Newall C when opening his case on 16 November 2015, as follows: In this particular case, and I wasn't aware of this at the start of these proceedings, but I'm aware of it now, at the start the Police Commissioner, Andrew Scipione, was not the Police Commissioner in April 2007 when he said in his 181D notice that he was the Police Commissioner, and that was the originating commencement of these proceedings
It follows, according to the appellant's argument, that the issuing of the Notice of Intent was an invalid act and every subsequent act by the NSW Police Force, even after Mr Scipione became Commissioner of Police, was similarly invalid.
It should be noted that in those preliminary proceedings, the appellant developed this contention to bring in a further ground. An illustration is the following extract from his written submissions filed on 13 July 2016: … f. Commissioner A.P Scipione pre-determined on his own motion the appellant's removal from the NSWPF on 15 July 2010 in the same manner he commenced them in April 2007, this 4 year s.181D process ending in the removal of the appellant from the NSWPF formerly recommenced on 21 July 2010 when the appellant was referred automatically to the CAP panel. The appellant doubts that any consideration was given to his response to that s.181D notice on account the decision to dismiss the appellant had already been made. The Commissioner of police, having no power to actually commence the s.181D process himself stated he had no choice but to do so, before the legislative process was undertaken. The inference can be drawn to support the assertion the decision to dismiss the appellant had been made on 15 July 2010 outside the normal process and before that process had commenced.
In the proceedings before Newall C on 17 November 2015, the appellant announced, "I've located the evidence of my nomination in April 2007 for a 181D". The appellant then took Newall C to the transcript of the Supreme Court proceedings which is referred to at [29] to [31] above.
The Commissioner then proceeded to hear the submissions of counsel for the respondent. At the conclusion of the respondent's submissions, the appellant was given the opportunity to put submissions in reply. At the conclusion of those submissions in reply, and immediately before Newall C reserved his decision and concluded the proceedings, the exchange set out at [4] above occurred.
As mentioned at the outset, the contempt of the Commission, about which the appellant now complains, was the failure of the respondent to produce the Notice of Intent, in response to the call which Newall C treated as a subpoena.
This relatively lengthy background is to place in context the historical circumstances in which that issue arose and to indicate its significance to the case of the appellant.

Statutory Scheme with respect to Contempt of the Commission

The Industrial Relations Act 1996 ('the Act') establishes the Commission: s 145(1). The Commission consists of a President, Vice President, Deputy Presidents and Commissioners: s 147(1). The President (and, if appointed a Vice President and Deputy Presidents) are Presidential Members: s 147(2). The Commission may be constituted by a Member or a Full Bench of the Commission: s 155.
The Act provides for the appointment of a Presidential Member as a Member of the 'Commission in Court Session': s 149(1). A person so appointed is referred to as a 'judicial Member of the Commission': s 149(3). The Commission in Court Session is designated as the Industrial Court of NSW: s 151A.
The Commission may be characterised as "one body clothed with distinct legal characters according to its composition and functions": Public Service Association and Professional Officers' Association Amalgamated Union of NSW v Director of Public Employment [2012] HCA 58; (2012) 250 CLR 343 at 13. Those functions and powers may be generally described as, on the one hand, those that are arbitral and, on the other hand, those that are judicial. However, it is clear that only the Industrial Court may exercise judicial functions and, in particular, those matters exclusively assigned to it under the Act: see s 153.
The Commission is entirely a creature of statute and its powers and functions must be exclusively found from that source. It has no general jurisdiction.
The Act contains provisions which deal with contempt of the Commission. They are as follows: 153 Jurisdiction of Commission in Court Session (1) The following functions of the Commission are to be exercised only by the Commission in Court Session: (a) proceedings for an offence taken before the Commission (including proceedings for contempt), … 164 Powers of Commission as to the production of evidence, perjury and contempt (1) The Commission may exercise the functions of the Supreme Court in relation to: … (b) compelling the production, discovery and inspection of records and other documents, and … (2) The Commission in Court Session may exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission (including disobedience of any order made by or process issuing out of the Commission). 180 Contempt of Commission-offence (1) A person in contempt of the Commission is guilty of an offence. Maximum penalty: 500 penalty units in the case of a corporation or, in any other case, 50 penalty units or imprisonment for 6 months, or both. (2) For the purposes of subsection (1), conduct is a contempt only if the same conduct in relation to the Supreme Court would be a contempt of the Supreme Court. (3) Proceedings for an offence against this section may be taken only before the Commission in Court Session. 399 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) by the Minister or by a person with the written consent of the Minister, or (b) by an inspector, or (c) by a person, or a person of a class, prescribed by the regulations. (2) In any such proceedings, a consent to institute the proceedings, purporting to have been signed by a person authorised to give a consent under this section is evidence of that consent without proof of the signature or authority of the person. (3) Any such proceedings instituted by an officer of a Government Department may be prosecuted on his or her behalf by any officer of that Department. (4) This section does not limit any function that may be exercised by the Commission under section 164(2) with respect to any contempt of the Commission.
Regulation 41 of the Industrial Relations (General) Regulation 2015 prescribes, for the purposes of s 399(1)(c), an industrial organisation concerned in the industry to which the proceedings relate as the only person, or class of person, who may institute proceedings for an offence against the Act. Clearly, the appellant is not a person who is authorised by s 399 of the Act to institute proceedings for an offence against the Act, including an offence under s 180.
We also mention the provisions of s 176(3) of the Act which are in the following terms: (3) If a matter arises in proceedings before the Commission (otherwise than in Court Session) that is within the jurisdiction of the Commission in Court Session, the Commission may continue to deal with that matter as the Commission in Court Session if: (a) the Commission is duly constituted or reconstituted by a judicial member, and (b) any member who is not a judicial member does not take part in the proceedings on that matter, and (c) only such evidence given in the existing proceedings before the Commission as is admissible in evidence in proceedings before the Commission in Court Session is taken into account in determining that matter.
The Industrial Relations Commission Rules 2009 ('the 2009 Rules') contain the following provisions which deal with contempt of the Commission: PART 18 - CONTEMPT Division 1 - Contempt in the face or hearing of the Industrial Court 18.1 Application of Division This Division applies to contempt of the Industrial Court that is committed in the face of, or within the hearing of, the Court. … 18.3 Charge defence and determination (1) If the offender is brought before the Industrial Court, the Court: (a) must inform the offender of the contempt charged, and (b) must give the offender an opportunity to make a defence to the charge. (2) After hearing the offender, the Industrial Court: (a) must determine the matter of the charge, and (b) as appropriate, must make an order for the punishment or discharge of the offender. … Division 3 - Contempt of the Commission when constituted otherwise than as the Industrial Court … 18.11 Contempt of the Commission when constituted otherwise than as the Industrial Court (1) This rule applies to contempt of the Commission when constituted otherwise than as the Industrial Court. (2) If it is alleged, or appears to the Industrial Court on its own view, that a person is guilty of contempt of the Commission, the Court may, by order, direct the Registrar to apply by motion for, or to commence proceedings for, punishment of the contempt. (3) Subrule (2) does not affect the right of any person other than the Registrar to commence proceedings for punishment of contempt. (4) Proceedings commenced under this rule are to be dealt with in the same way as proceedings commenced under Division 2. …

The First Application

Upon a consideration of those provisions, three reasons emerge as to why the appellant's first application must fail.
First, this Full Bench, as constituted, does not have any power (including power of a procedural kind) to deal with contempt of the Commission. The power to deal with contempt of the Commission resides in the Industrial Court. This much is clear from the provisions of s 153(1), s 164(2), s 180(3) of the Act and Pt 18 of the 2009 Rules (and, see Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission of NSW [2004] NSWCA 183; (2004) 60 NSWLR 602 at [30] and [47]).
Further, the Full Bench does not have power under the Act, the Regulation or the 2009 Rules to state a case or refer questions to the Industrial Court or to cause contempt proceedings to be initiated by the Industrial Registrar before the Industrial Court.
It follows, that the Commission, as presently constituted, does not have the power to order the transfer of the allegation or issue of contempt, assuming it was appropriate to do so, to the Industrial Court.
The Supreme Court may become possessed of the jurisdiction of the Industrial Court with respect to contempt of the Commission where the Industrial Court transfers proceedings to the Supreme Court under s 151(1) of the Civil Procedure Act 2005. However, such a power only resides in the Industrial Court and not in the Commission as presently constituted and then only in relation to "proceedings before" the Industrial Court. There are no proceedings presently before the Industrial Court as to contempt.
Secondly, if a matter arises in proceedings before the Commission (other than the Industrial Court) that is within the jurisdiction of the Industrial Court, the Commission may continue to deal with that matter as the Industrial Court so long as that sitting is confined to a judicial Member: s 176(3) of the Act. However, no such application has been made in this case, with the appellant insisting on the proceedings being transferred to the Supreme Court. Further, the respondent concurred that it would be inappropriate for a transformation under s 176(3) to take place essentially for the first reason we give for not activating the procedure in [70] below.
It is not our place to cast a view as to any likely determination by the Industrial Court with respect to transfer if the allegation of contempt is raised by the appellant in the Industrial Court by whatever means may be legally available to him and he makes an application to transfer proceedings under s 151 of the Civil Procedures Act (the appellant has not expressed any desire to make such an application). However, we note that there may be at least a question as to whether the Industrial Court has a power to transfer the allegation of contempt of the Commission so as to be dealt with by the Supreme Court. The question that arises is as to whether an allegation of contempt of the Commission would constitute a proceedings for the purposes of s 151(1) or rather an issue or matter raised within a proceedings.
We should note that we have considered whether there should be a transformation of the present proceedings under s 176(3) of the Act in order to expose the contempt issue before the judicial Member who is a Member of this Full Bench. We have decided not to take that course for the following reasons: 1. The taking of that step and the rendering of a determination by the President in Industrial Court proceedings may result in him being unable to sit further in this appeal. Such a development would result in the appeal being unable to be heard (see s 156(2)) unless an Acting Deputy President were appointed. We do not consider it is appropriate to place the appeal in that precarious position; 2. The appellant has not sought to engage the Industrial Court in the contempt allegations; and 3. Other means are available to dispose of the contempt allegation without resulting in those difficulties.
If the appellant decides to press his allegation before the Industrial Court he may do so by giving notice of that intention to the Acting Industrial Registrar in writing.
The first of the two applications by the appellant is refused because we lack power to grant that application.

The Second Application

In our view, the Industrial Court has ample jurisdiction to consider any application of contempt of the Commission contemplated by the appellant (this conclusion says nothing about whether there is a proper basis to proceed with such an alleged contempt). Without finally pronouncing on the question, we consider there is substance to the submission made by Mr M T Hutchings of counsel, who appeared for the respondent, that the Supreme Court would also have jurisdiction with respect to that question under s 23 of the Supreme Court Act 1970.
The parties have common ground that, in the event the appellant seeks to move the Industrial Court or Supreme Court with respect to his allegations of contempt of the Commission, these proceedings should be stayed to await the outcome of such processes. We accept the submissions made by Mr Hutchings in support of such an outcome.
We also accept the submissions of the respondent to the effect that no stay of the proceedings should be granted until the appellant commences some contempt process. Counsel for the respondent was correct in submitting that to do otherwise might leave the appeal in an uncertain state not conforming with the requirements of the Civil Procedure Act.
Strictly speaking, we reject, therefore, the second application by the appellant for a stay of the proceedings. However, we propose to make directions which will have the effect that, in the event the appellant initiates contempt proceedings either in the Supreme Court or the Industrial Court, these proceedings will be stayed until the determination of those proceedings.

The Balance of the Proceedings

At an earlier stage of these proceedings, the respondent sought that the hearing of the question of leave to appeal occur before any hearing as to the merits of the appeal. Having now heard the parties partially as to the appeal, we do not consider that we should proceed in that fashion and accordingly we shall, subject to our earlier observations as to a stay of the proceedings above, fix a programme for the hearing of both the application for leave to appeal and the merits of the appeal.
We propose to make orders, therefore, for the disposition of the appeal in that light.
Some preliminary observations should be made in that respect: 1. Pursuant to s 188(1) of the Act, we note that it is necessary to obtain leave to bring an appeal. 2. The appellant has already filed a significant volume of written submissions (including the substantial discussion within the grounds of appeal appearing in the Notice of Appeal) but disclaims these submissions address or fully address the question of leave to appeal or the merits of the appeal. We have for that reason provided, in the directions we make, provision for the appellant to file and serve further submissions, although we would emphasise that it will be unnecessary to repeat submissions already made in those earlier submissions. 3. We note that the submissions thus far filed by the appellant contain affidavits deposed by him. We will await submissions from the respondent before we deal with them having regard to s 191(2) of the Act. No other issues as to evidence would seem to arise (we note that the appellant declined to make an application for fresh evidence to be brought in, by summons if necessary, the Notice of Intent). 4. No Appeal Books have been filed in the proceedings but we have received the transcript of the proceedings below. The material in the proceedings below that would ordinarily constitute an Appeal Book is substantial. In the absence of hearing any contrary submission from either party, we propose to dispense with the filing of Appeal Books and in lieu thereof to call up the record of the proceedings below so far as it contains material required for Appeal Books under the rules governing these proceedings. We will also grant liberty to the appellant and respondent to file an application book containing those parts of the record below (exhibits, etc.) which they would wish to draw particular attention to in the hearing of the appeal. We will also grant liberty to apply with respect to the date for hearing the appeal we fix by our directions.
In the result, we make the following orders and directions for the disposition of the appeal: 1. Subject to further order, the requirement to file and serve Appeal Books is waived; 2. The appellant shall file and serve any further written submissions concerning leave to appeal and appeal on or before 4pm Friday 26 August 2016. 3. The respondent shall file and serve any submission concerning leave to appeal and appeal three weeks after receipt of the appellant's written submission. 4. The appellant shall file and serve any submission in reply two weeks after the receipt of the respondent's written submissions on leave to appeal and appeal. 5. The matter will be listed for hearing at 10am on Thursday 13 October 2016. 6. Liberty to apply granted on the conditions specified above upon the giving of two days' notice.

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