Cochran v Sutton

Service outside Australia 8There was no provision in the Industrial Relations Act which expressly permitted service of originating process issued out of that Court outside Australia in 2013. Part 5 of the Industrial Relations Act, headed "Procedure and powers of Commission", provides that the Commission "may require a document to be served outside the State": s 162(2)(f). While it is true that a foreign country is a place "outside the State" (meaning the State of New South Wales) it is implausible that the Commission was given statutory power to require service, without limitation as to circumstances, subject matter of the proceedings or nature of the relief, anywhere in the world. Section 162 applies to the Commission generally. If sitting in Court Session it is described as a "superior court of record". Otherwise, it is not aptly described as a court and is not limited to traditional judicial functions. This being so, the principle that one does not read as restricted by implied limitations a provision conferring jurisdiction on a superior court has no application: cf Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404, 420-421. 9Prior to the introduction of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), the Industrial Relations Commission Rules 1996 ("the 1996 Rules") provided for service of documents outside Australia: r 112. The Industrial Relations Commission upheld the validity of r 112 (since repealed), permitting service outside Australia, as a rule properly made to give effect to s 162(2)(f) pursuant to the rule-making power in s 78 of the Interpretation Act 1987 (NSW): Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 2) [2001] NSWIRComm 92; 106 IR 274 at [92]. For the reasons given above, that approach should not be accepted. The Commission in Gough & Gilmour also relied on the rule-making power in s 185(2)(e) of the Industrial Relations Act referring to "any matter that may be the subject of rules under the Supreme Court Act 1970". Whatever the intended scope of that provision, it did not confer jurisdiction on the Industrial Relations Commission which the Commission did not otherwise have. Importantly, service out of the jurisdiction is "not a mere matter of the practice or procedure observed by the particular court in the exercise of its jurisdiction ... [but] is a component and a measure of jurisdiction itself": Gosper v Sawyer [1985] HCA 19; 160 CLR 548 at 565 (Mason and Deane JJ). The reasoning in Gough & Gilmour in this respect should not be accepted. 10Absent power under the Industrial Relations Act, the only identified basis for authorising service outside Australia was said to be Pt 11 of the UCPR, which does provide for the service of originating process outside Australia in circumstances referred to in Sch 6 of the UCPR: r 11.2(2). The submission that that Part applies in the Industrial Court was based on the proposition that, in accordance with r 1.5, the rules apply in all civil proceedings (as identified in Sch 1, col 2) in the Industrial Court (as identified in Sch 1, col 1) subject to the exclusions set out in col 4, which do not include Pt 11. 11That submission cannot be accepted. Rule 11.1(1) states: "This Part applies to proceedings in the Supreme Court." 12In its terms, Pt 11 does not apply to the Industrial Court. Rule 1.5(1), which states that "these rules apply to each court referred to in Column 1 of Schedule 1 in relation to civil proceedings of a kind referred to in Column 2 of that Schedule", is subject to two categories of exceptions. One is the express exclusions in col 4 which, as the submission noted, did not include Pt 11. However, r 1.5(4) is in the following terms: 1.5 Application of these rules ... (4) Without limiting the operation of subrule (2), if any Part ... of these rules provides that it applies to proceedings ... in a specified court ... the Part ... does not apply to proceedings ... in any other court. 13It is true that Pt 11 is identified in col 4 (excluded provisions of rules) in relation to the Local Court: that provision is clearly anomalous. Part 11 is not listed with respect to the Industrial Court, the Industrial Relations Commission, the Land and Environment Court, the District Court or the Dust Diseases Tribunal, each of which otherwise is identified as a court or tribunal to which the UCPR applies. In accordance with the combined effect of r 1.5(4) and r 11.1, exclusion was not necessary. No reliance can be placed upon Pt 11: it did (and does) not apply in the Industrial Court. 14The Industrial Court reached a different conclusion. The Court relied on the fact that, prior to the UCPR coming into effect, r 112 of the 1996 Rules had permitted service outside Australia and that in Gough & Gilmour the Commission had upheld the validity of that rule as a proper exercise of the rule-making power in giving effect to s 162(2)(f). However, for the reasons noted above, that conclusion cannot be accepted. The argument that the UCPR revealed no intention to vary that power therefore falls away, but in any event does not conform to the construction of Pt 11 of the UCPR set out above. 15The Industrial Court further noted that this Court had held that there was no authority vested in the Dust Diseases Tribunal to direct service of its process overseas: Studorp Ltd v Robinson [2012] NSWCA 382 (Allsop P, Meagher and Hoeben JJA). No reliance was placed on r 1.5(4) because that provision did not commence until 10 August 2012 and it was probably not drawn to the Court's attention. This led the Court to adopt a somewhat more discursive approach to the question than has been adopted above. None of that is to cast doubt on the conclusion reached. 16The Industrial Court was also aware that Studorp had been applied with respect to the District Court in Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 (Macfarlan JA, Ward and Gleeson JJA agreeing). Although the Court did not refer to r 1.5(4), it did rely upon r 11.1, noting that Pt 11 was "by its terms ... confined in its application to the Supreme Court": at [23]. 17It was necessary for the Industrial Court to distinguish Studorp and Flo Rida. It sought to do so by relying upon the status of the Industrial Court as a "superior court of record" with equivalent status to the Supreme Court, an appellation and status which applied to neither the Dust Diseases Tribunal nor the District Court. It did not, however, explain how s 162(2) could be read to apply only to the Commission in Court Session (the Industrial Court) and not to the Commission generally, the rest of s 162 clearly having the broader operation. 18Finally, the Industrial Court noted at [38]: "There is no indication that the purpose in making Pt 11 of the UCPR was to cut down the jurisdiction of the Industrial Court, a court equal in status to the Supreme Court, by making that Part applicable exclusively to the Supreme Court." 19Questions of status and the designation of a statutory court of limited jurisdiction as a "superior court of record" provide inadequate bases for reading down the clear and unambiguous language of Pt 11. As explained in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [55] the description of the Industrial Court as a "superior court of record" did not relieve it of liability to correction by this Court in its supervisory jurisdiction: "In determining whether the errors of law that were made by Walton J permitted the grant of relief in the nature of certiorari, statutory identification of the Industrial Court as a 'superior court of record' is irrelevant." 20For these reasons, there should be a grant of leave to appeal, the appeal should be upheld and the orders made in the Industrial Court set aside. The Court should make the following orders: (1) Grant the applicant leave to appeal with respect to the judgment and orders of the Industrial Court of 5 December 2013. (2) Set aside the orders of that Court dismissing the applicant's notice of motion and ordering that he pay Ms Sutton's costs of the motion. (3) In place thereof, order that: (a) the order of 21 October 2013 directing substituted service on the applicant of the first respondent's notice of motion filed on 15 May 2013 be set aside; (b) declare that the Industrial Court is not able to authorise the service of originating process of the Court outside Australia; (c) order the first respondent to pay the appellant's costs in the Industrial Court. (4) Order that the first respondent pay the applicant's costs in this Court. (5) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to her costs in this Court. 21WARD JA: I agree with Basten JA's reasons and with the orders his Honour proposes.

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