Boral Construction Materials Group Limited v Australian Workers' Union, NSW

APPLICANT: Mr J. Phillips of counsel SOLICITORS: Maurice May & Co

LEGAL REPRESENTATIVES: RESPONDENT: Mr J.N. Gallagher SC with Mr K.G. Bennett of counsel AGENT OF RESPONDENT: Mr N. Ward

JUDGMENT:

• 15 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J

IRC1618 of 2000 BORAL CONSTRUCTION MATERIALS GROUP LIMITED v AUSTRALIAN WORKERS' UNION, NSW Application pursuant to s139 by Boral Construction Materials Group Ltd as to alleged contravention of dispute orders issued by Walton J, Vice-President on 11 April 2000 INTERLOCUTORY JUDGMENT 1 The primary application before the Commission in Court Session was filed by an employer, Boral Construction Materials Group Ltd ("Boral") pursuant to s139(1) of the Industrial Relations Act 1996 ("the Act") on 12 April 2000. The application alleges a contravention of dispute orders issued by Walton J, Vice-President, on 11 April 2000 against the Australian Workers Union, NSW ("the AWU"). 2 Relevantly, s139 of the Act reads: Section 139 - Contravention of dispute order: 139(1) [Application] The Commission, on application , must deal expeditiously with an alleged contravention of a dispute order. The application may be made by the person who applied for the order or any other person who was authorised to apply for the order. (2) Before dealing with an alleged contravention of the order, the Commission is required to summon the person alleged to have contravened the order to show cause why the Commission should not take action for the contravention. . . . (5) Any such penalty may be recovered in the same way as a penalty imposed by the Commission for an offence against this Act. Note. The jurisdiction of the Commission under this section is exercisable only by the Commission in Court Session.

(Emphasis added) 3 In accordance with s139(2) of the Act, the AWU, after the application was served by the employer, was issued with a summons to show cause and their appearance was noted before this court on Thursday 13 April 2000. 4 Mr Phillips, of Counsel, representing the AWU brings an interlocutory application to strike out the proceedings. He relies on two grounds in support of his application. He submits: (i) that the application brought by the employer was not issued in accordance with the appropriate Rules of the Industrial Relations Commission of NSW ("the IR Rules") and in its present terms the application must be held to be a nullity; and

(ii) the Industrial Relations Commission sitting in Court Session has no power under the Act to act on its own initiative. 5 It is agreed between the parties that this application is within the jurisdiction of the Commission. (see Franklins Limited v National Union of Workers, New South Wales Branch (1995) 78 IR 289 at 296; ss152,153,194 of the Act). 6 The AWU submits in this interlocutory application the Commission in Court Session should reject as invalid and/or a nullity the application before it because the application was issued by the employer under Part 3 Rule 14 of the IR Rules and the AWU submits Part 28 of the IR Rules outlines the relevant procedure. In essence the first objection is this proceeding was commenced by the filing of an application under Rule 14 rather than, as the AWU submits, by a summons with affidavit verifying the allegations in accordance with Part 28 of the Rules. 7 The application was issued under IR Rules Part 3 headed under the IR Rules "Initiation of Proceedings", and Rule 14, headed "Originating process". Relevantly IR Rule 14 reads: 14(1) Except as otherwise provided, an application to a tribunal must be in or to the effect of the Forms set out in Schedule 2 of the Rules. (2) In the case of doubt, the originating process may be in a form approved by the Registrar. (3) In any proceedings between parties, or where a tribunal or the Registrar directs, the originating process must bear a note requiring any party wishing to appear in the proceedings to file a notice of appearance within 7 days of service of the process upon that person. (4) A tribunal may, at any stage of the proceedings, permit a person to appear notwithstanding failure to file notice of appearance. 8 The AWU submits Part 28 of the IR Rules headed "Proceedings Relating to Prosecution and Civil Penalty" outlines the relevant procedures to be followed. The relevant Rules under Part 28 are as follows: IR rule 218 Application 218(1) This Part applies only to proceedings before the Commission in Court Session. (2) In this Part, proceedings for an offence include proceedings to recover a civil penalty.

IR rule 219 Prosecutions 219(1) Proceedings before the Commission for an offence (other than contempt) must, unless otherwise provided, be commenced by application for summons, must be accompanied by an affidavit verifying the allegations made in the application and must state: (a) the name and address of the person by whom the proceedings are brought (the prosecutor); and (b) the capacity in which the prosecutor is taking the proceedings; and (c) the name and address of the person against whom the proceedings are brought (the defendant); and (d) the Act and the section under which the application is made; and (e) the nature of the breach or offence which is alleged; and (f) particulars of any payment which it is alleged the defendant has failed to make, and whether an application is to be made pursuant to s358 for an order in respect of those payments.

(2) The application must also be accompanied by a summons, addressed to the defendant, for signature by or on behalf of the Registrar.

IR rule 220 Issue of Summons 220 Where an application for a summons has been filed and it appears to the Registrar to be properly filed, the Registrar must issue the summons, commanding the defendant to appear before the Commission on the day and at the place specified.

IR rule 221 Service of summons and affidavit verifying 221(1) The prosecutor must serve the summons and a copy of the affidavit verifying promptly and not later than 5 days before the return day of the summons unless the Commission gives leave for a shorter period of service. . . . 9 The AWU submits Pt 28 is the relevant Part of the IR Rules for the initiation of such proceedings as what is sought to be imposed and recovered in this application is a civil penalty. In support of this proposition they rely on the provision of s139(5) of the Act: (5) Recovery of penalty Any such penalty may be recovered in the same way as a penalty imposed by the Commission for an offence against this Act.

10 The AWU submits, relying on legal authority, the commencement of these proceedings, if not done in accordance with the relevant statutory requirements, will effectively determine this summons is void and/or a nullity. Such a basic irregularity in the issuing of this application, without an affidavit in support, it submits, cannot be held to be a mere irregularity under the Act but must have the effect of declaring the summons a nullity. 11 In dealings where there is a challenge to the validity of a summons, the court must distinguish between a nullity and a mere irregularity. A number of authorities are relied upon for this proposition. In Re Pritchard (1963) 1 Ch 502 at 523 and 524 it was held: The authorities do establish one or two classes of nullity such as the following ... (i) proceedings which ought to have been served but have never come to the notice of the defendant at all ... (ii) proceedings which have never started at all owing to some fundamental defect in issuing the proceedings and (iii) proceedings which appear to be duly issued but fail to comply with a statutory requirement ...".

Further in Hubbard Association of Scientologists v Anderson (No 2) (1972) VR at 577 in examining the service of a statement of claim the court held: The defendant here sought to say, therefore, that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable . The distinction between the two has been repeatedly drawn. If an act is void then it is in law a nullity.

It is not only bad, but incurably bad . . . but if an act is only voidable then it is not automatically void. It is only an irregularity which may be waived."

The Full Court held each case depends on the facts before the court. 12 The AWU also relies upon the reasoning of this Commission in Wishart v McQuillan (1961) AR 41 when a summons issued under the Act was accompanied by an affidavit and it was found the affidavit did not state the grounds and reasons for the summons. The Commission determined that while it could be found that the matter before the court was a nullity the court had no need to make such a finding as the documents were simply "hopelessly inadequate". Further the Full Bench of this Commission also examined an affidavit in support of a summons in E L Weidner v Electrical Trades Union of Australia, NSW Branch, AILR 17 October 1975 and held that in the affidavit filed in support of the application there was no statement of the grounds upon which the application was made and that accordingly Regulation 31 (as it then was) of the Regulations made under the Act was not complied with and the summons was therefore not properly issued. It was held the Commission should not waive strict compliance with the regulations. Having regard to the nature of the proceedings, the Commission determined it would not apply s83A (as it then was) to right the wrong and found the error fatal to the application. 13 Further Mr Phillips submits on behalf of the AWU, s162(2)(i) of the Act excludes the exercise of any function of the Commission in Court Session acting on its own initiative such as that exercised by it on this application when in accordance with s139(2) of the Act it issued to the AWU a summons to show cause. 14 Section 162 relevantly reads: 162(1) [Determination of procedure] The Commission may, subject to this Act, determine its own procedure. (2) [Powers] The Commission: (a) is to act as quickly as is practicable, and (b) is to conduct its proceedings publicly or, if it considers it necessary, privately, and . . . (i) may exercise, on its own initiative, any function exercisable by it on application (except when it is in Court Session), and (j) may, on its own initiative, inquire into any industrial matter. 15 The AWU submits it is consistent with the arbitral and dispute solving roles of the Commission, when not sitting in Court Session, to be able to act on its own initiative in relation to industrial matters and industrial disputes. This is so because there may be instances when the parties do not bring an industrial matter or industrial dispute before the Commission on any application but the Commission on its own initiative may determine to have the matter determined or resolved. However, it submits the Commission sitting in Court Session, such as it does in consideration of s139 of the Act, cannot operate by way of its own initiative as is clearly enunciated in s162(2)(i). 16 The AWU in support of this proposition also relies on the words of IR Rule 15 which is headed "Matters initiated by Commission" and reads: Rule 15(1) Where the Commission decides, on its own initiative, to act to resolve any industrial dispute or to exercise any of its functions it may proceed summarily or direct that proceedings be commenced by a summons to show cause. (2) Such summons must be served by the Registrar upon any person as the Commission may direct.

It submits this Rule cannot be used for the issue of a summons to show cause by the Commission in Court Session sitting on a s139 application. 17 The applicant employer invites the court to reject both submissions. It submits as to the effect of s162(2)(i) that s162 is a general procedural provision applying to the Commission and a general procedural provision must give way to a specific provision in any Act. In this matter there is specific provision under s139(2) which directs the Commission in Court Session to act in a specific manner. 18 The issue as to the specificity of a provision being in conflict with a general provision of an Act was examined in Downey v Trans Waste Pty Ltd ([1990-1991] 172 CLR 167 at 181) per Dawson J: Where there is a repugnancy between the general provisions of a statute and provisions dealing with a particular subject matter, as a matter of general construction the latter must prevail. As Deane J. pointed out in Refrigerated Express Lines (A/asia) Pty. Ltd v Australian Meat and Live-stock Corporation (No.2) (1980) 44 FLR 455, at p 469; 29 ALR 333, at p 347: "Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter." And in Anthony Hordern and Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, Gavan Duffy C.J. and Dixon J. observed, at p 7: "When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power." Dixon J. referred to the same principle in R. v. Wallis (1949) 78 CLR 529 when he said of the Commonwealth Conciliation and Arbitration Act 1904, at p 550: "If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s.38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course. This applies especially when the power or duty affirmatively conferred or imposed is qualified by some condition, limitation or direction." 19 In The King v Wallis (1949) 78 CLR 529 in referring again to Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia ((1932) 47 CLR 1 at 7) Dixon J said (at 551): . . . When the Legislature explicity gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power. 20 An analysis of the above authorities reveals applications similar to the one before the Commission under past State Industrial legislation with similar provisions and under past Rules of the Commission have been initiated by the issue of summons and affidavit verifying the allegations. Marks J in Director-General, Department of Education and Training v NSW Teachers Federation [2000] NSWIRComm 17 published 13 March 2000 examined in detail the legal effect of the provisions of the Act related to an application for dispute orders. He examined relevant authorities: Australasian Meat Industry Employees Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Witham v Holloway (1995) 183 CLR 525; The King v The Associated Northern Collieries & Ors (1910) 11 CLR 738 esp 742 et seq; Gapes v Commercial Bank of Australia Ltd (1979) 38 FLR 431. His Honour concluded s139 proceedings were civil proceedings but he commented they should be conducted "in the nature of criminal proceedings". He went on to require the proceedings should be conducted by adopting an appropriately higher standard of practice and procedure than civil practice and procedure simplicity. 21 Given the authorities before the Court and a close examination of the IR Rules, it is the court's view this application should have been commenced under Part 28 of the Rules and therefore there should have been issued a summons with an affidavit verifying the allegations. 22 I am persuaded Part 28 is the relevant provision of the Rules for the following reasons: the proceedings before the Court relate to "civil penalty" (per headnote of Part 28) and the jurisdiction of the Commission under s139 of the Act is exercisable only by the Commission in Court Session and IR Rule 218(1) deals with the proceedings before the Commission in Court Session. While I accept the applicant's submission the proceedings are not to "recover" a civil penalty I do not believe IR Rule 218(2) precludes this application under Part 28 as the words of the Rule say only the Part covers proceedings which "include" proceedings to recover a civil penalty. 23 I further find s139(2) of the Act specifically requires the Commission in Court Session to issue the summons to show cause and that is what occurred in this case. The action of the Commission was in accordance with the specificity of the Act. It may well be that a failure by the Commission in Court Session to proceed, once an application has been made pursuant to s139(1), the said application not being constrained by the provisions of the Act, would in itself expose the Commission to a writ of mandamus requiring it to exercise its public duty and to issue the summons pursuant to s139(2). 24 I do not believe s162(2) is relevant in relation to the issues before the Court. The Commission in Court session cannot be found to have initiated the proceedings. It was initiated by the employer. Further, the Commission in Court session cannot be found by the issue of a summons to show cause to have initiated a proceeding. Notwithstanding the above, the Commission in Court Session was in any event obliged to issue a summons to show cause under s139(2) of the Act. 25 In accordance with the specific provision s139(2) I find the AWU was properly issued with a summons to show cause. However, in finding the appropriate Rules governing such an application are under Part 28 of the IR Rules, I find these rules are silent as to procedures to be followed under s139(2) for the issue of a summons to show cause. I find IR Rule 15 was not an appropriate rule to be relied upon for the issue of this summons to show cause. Nonetheless, I find s139(2) has been complied with and there has been a proper issue of the summons to show cause under the Act notwithstanding the Rules are silent. 26 The orders applied for are most serious and of a very punitive nature if the maximum allowed under the Act is ordered. I find the application on its reading comprehensively outlines the grounds and reasons for the application. It provides specificity in its particulars. I reject the submission that this application should be found a nullity because it does not comply with the appropriate rules. There is however an irregularity in the application. On such a serious matter there should be a sworn affidavit verifying the application. Having found Part 28 applies, and given the serious nature of the proceedings, I find it proper the particulars be provided in the appropriate form namely an affidavit verifying the allegations. 27 However, this court is also required by s139 of the Act to deal with the application "expeditiously". The hearing is listed for 10 am Wednesday 7 June and 10 am Thursday 8 June 2000. 28 Section 170 of the Act relevantly empowers the Commission to order any amendment it considers necessary in the interests of justice: IRA 170 Amendments and irregularities 170 (1) [Amendments] The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) [When amendment may be made] Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) [Failure to comply] If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) [Commission may set aside proceedings] For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 29 Having found an irregularity in the proceedings before the Commission in Court Session in accordance with s170 of the Act the Commission gives the following orders:

1. I dispense with the need to file a summons under IR Rule 219(1).

2. I order under s219(1) an affidavit verifying the allegation as pleaded in the application before the Commission in Court Session be filed and served by 4 pm Monday 5 June 2000. 30 In accordance with the duties imposed by the Act on the Commission in Court Session I confirm the hearing at 10 am Wednesday 7 June and 10 am Thursday 8 June 2000. 31 I defer any consideration as to the costs of this interlocutory application. ******

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