Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales

CATCHWORDS: PROCEDURE - judgments and orders - amending orders - slip rule - Uniform Civil Procedure Rules 2005 r 36.16(3A), r 36.17

LEGISLATION CITED: Industrial Relations Act 1996 Uniform Civil Procedure Rules 2005

CASES CITED: Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83; (2009) 255 ALR 131 Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411

Caterpillar of Australia Pty Ltd (First applicant) Caterpillar Inc (Second applicant) Caterpillar SARL, Singapore Branch (Third applicant) PARTIES: Caterpillar Overseas Credit Corporation (Fourth applicant) Industrial Court of New South Wales (First respondent) Gough and Gilmour Holdings Pty Ltd (Second respondent) Harcourt David Gough (Third respondent) Anthony Lansley Gilmour (Fourth respondent)

COUNSEL: Andrew Gray (Solicitor) (Applicants) M J Kimber SC, A B Gotting (Second, third and fourth respondents)

SOLICITORS: Mallesons Stephen Jaques (Applicants) Harmers Workplace Lawyers (Second, third and fourth respondents)

LOWER COURT JURISDICTION: Industrial Court of New South Wales

IRC 227 / 07 LOWER COURT FILE NUMBER(S): IRC 5227 / 00

LOWER COURT JUDICIAL OFFICER: IRC 227 / 07 Wright J, Walton J, Staff J

IRC 227 / 07 21 February 2008 IRC 5227 / 00 LOWER COURT DATE OF DECISION: (No 17) 2 February 2007 (No 15) 4 June 2003 (No 14) 27 February 2003 (No 11) 19 December 2002 (No 9) 23 October 2001

Caterpillar of Australia Pty Ltd v Gough & Gilmour Holdings Ltd [2008] NSWIRComm 3

IRC 5227 / 00 LOWER COURT MEDIUM NEUTRAL CITATION: Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 17) [2007] NSWIRComm 3 Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 15) [2003] NSWIRComm 173 Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 14) [2003] NSWIRComm 44 Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 11) [2002] NSWIRComm 354 Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 9) [2001] NSWIRComm 260

• 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40121 of 2008

SPIGELMAN CJ ALLSOP P TOBIAS JA

Thursday 16 July 209 Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales Judgment 1 THE COURT: On 17 April 2009 this Court published a judgment in which it made orders in the exercise of its supervisory jurisdiction with respect to proceedings in the Industrial Court of New South Wales. (Caterpillar of Australia Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 83; (2009) 255 ALR 131.) The applicants were substantially successful. An issue has arisen with respect to the orders made on that occasion. 2 The relevant orders in dispute are: "(5) Declare that the Industrial Court of New South Wales does not have jurisdiction to make any declarations or orders sought by the second to fourth respondents in matter No. IRC 5227 of 2000 other than dismissing the proceedings and ordering costs against the second to fourth respondent; … (8) An Order that the proceedings be remitted to the first respondent to determine the issue of costs in the proceedings before it and to conduct an enquiry into damages sustained by the applicants pursuant to an undertaking given by the second to third respondents as a result of interlocutory orders granted by the first respondent on 24 October 2001 and continued by orders made on 13 February 2003 until the interlocutory orders were dissolved on 14 July 2003." 3 The dispute that has arisen is as to whether the reference in Order (5) to "ordering costs against the second to fourth respondent" correctly represents the intention of the Court. In its terms this order suggests that the exercise of the discretion of the Industrial Court as to costs is constrained, so that only an order against the second to fourth respondents is able to be made as a matter of jurisdiction. 4 The second to fourth respondents ("the respondents") submit that such an interpretation of Order (5) is inconsistent with Order (8). Furthermore, they also submitted that the interpretation is inconsistent with the reasoning of the Court where Spigelman CJ said, with the approval of Allsop P and Tobias JA: "[163] The respondents correctly submit that it is not appropriate, in the exercise of a supervisory jurisdiction, to make any order for costs with respect to the proceedings in the Industrial Court." 5 It is unnecessary to set out all of the orders made by this Court. It is sufficient to note that, save in one respect, Orders (1) to (9) made by the Court were in the precise terms sought by the applicants in their summons. The one change that was made was that Order (8), as sought in the summons, would have ordered a remitter only "to conduct an enquiry into damages" as set out above. The words "to determine the issue of costs in the proceedings before it" were added by this Court. This change was required to implement the decision of the Court at [163] of the judgment of Spigelman CJ as set out above. 6 By Notice of Motion the second to fourth respondents seek the following orders: "1 An order varying order 5 pronounced on 17 April 2009 and entered on 13 May 2009 in proceedings No. CA 40121 of 2008 to read: Declare that the Industrial Court of New South Wales does not have jurisdiction to make any declarations or orders sought by the second to fourth respondents in matter No. IRC 5227 of 2000 other than dismissing the proceedings and ordering costs in respect of those proceedings. 2 Order that the Applicants pay the costs of this Notice of Motion." 7 The orders are sought pursuant to the slip rule found in r 36.17 of the Uniform Civil Procedure Rules 2005 or pursuant to the power in r 36.16(3A) of those Rules. The respondents accept that the same principles apply to the latter as to the former rule. Alternatively, the respondents rely on the inherent jurisdiction of the Court to vary an order that has been entered in circumstances in which the order does not express the order which was intended to be made. 8 The overlapping operation of the Rules of court and of the inherent jurisdiction was recently considered by this Court in Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411, where the relevant authorities are considered. The resolution of this matter does not require detailed analysis of those authorities. 9 The reference in the judgment at [163] to the fact that the respondents have 'correctly submitted' that this Court would not make an order for costs with respect to proceedings in the Industrial Court was based on the following passage in the respondent's submissions in this Court dated 16 October 2008: "[49] The Applicants, in the Applicants' Further Submissions at paragraph 9.1, contend that this Court has the power to order that the Respondents pay the Applicants' costs 'of the appeal and of the proceedings before the Industrial Court'. Quite apart from the fact that this is not an appeal, the Respondents submit that this Court does not have the power to make such an order, even in the exercise of supervisory jurisdiction, with respect to the Industrial Court proceedings: see Production Spray Painting & Panel Beating Pty Ltd and Others v Newnham and Others (No 2) (1992) 27 NSWLR 659 at 662 per Handley JA; see also Battenberg v Union Club (2005) 215 ALR 696 at 710 per Campbell J (as his Honour then was). Additionally, in any event, the Respondents would wish to be heard on the questions of costs in the Industrial Court, including with respect to the delay by the Applicants in raising the jurisdictional challenges agitated in these proceedings." 10 The implicit adoption of these submissions by this Court was intended to leave it open for the Industrial Court to determine the question of costs before it, not least because of the need to consider the delay by the applicants in challenging the jurisdiction of the Industrial Court. Perhaps there are reasons for that delay occasioned by the development of the jurisprudence in this Court and in the High Court with respect to the Industrial Court's jurisdiction under s 106 of the Industrial Relations Act 1996. 11 This Court did not have a basis for constraining the discretion of the Industrial Court even if this Court had the power to do so - a matter which it is unnecessary to consider. 12 The adoption by this Court of the orders sought in the summons, save in the one respect involving the variation of Order (8) by reason of the acceptance of this submission, gives rise to an inconsistency. The result was that the order made did not state the intention of this Court and had consequences that were not intended. (See Newmont Yandal supra at [41], [58], [60], [67], [77], [79], [83], [89]-[90], [116], [152]-[153], [185], [194].) Order (1) sought by the respondent should be made. 13 The applicants submit that no order as to costs should be made with respect to the Notice of Motion. By written submissions in this Court the applicants supported an interpretation of Order (5) which constrains the discretion of the Industrial Court. They submitted that they were entitled to rely on the terms of Order (5) and "not second guess whether the Court intended to make an order in these terms". 14 The inconsistency between Order (5) and Order (8) is apparent on its face. The reasons of the Court at [163], adopting as they did the written submissions of the respondents, make it clear that this Court erred in adopting the language of Order (5), as sought in the original summons, in circumstances in which it modified Order (8) in the way that it did. 15 The applicants should pay the respondents' costs of the Notice of Motion. **********

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