22 Nonetheless, in the absence of any argument about this issue, I do not propose to determine it given that in the exercise of my discretion I have decided not to grant the stay in any event. I do wish, however, to refer to the judgment of Bryson JA in Newcrest Mining v IRC of NSW & CFMEU [2005] NSWCA 85 where his Honour set out the relevant principles to be applied. In that case Newcrest sought an order in the nature of prohibition restraining the Industrial Relations Commission of New South Wales from dealing with a notification of an industrial dispute by the CFMEU. Newcrest applied by Notice of Motion for an order that proceedings in the Commission be stayed until determination of the claim in their Summons.
23 In his judgment at [5] Bryson JA considered the Court's power to grant the stay and the basis upon which the Court would do so:
5 Case law to which I was referred relating to stay of proceedings under challenge pending determination in the Court of Appeal relates to staying execution of judgments or enforcement of orders which are themselves under appeal. The principal authority on that subject is Alexander v. Cambridge Credit Corporation (Receivers Appointed) (1985) 2 NSWLR 685. Recent consideration in the context of enforcement or suspension of penal orders which are under appellate challenge is found in New South Wales Bar Association v. Stevens [2003] NSWCA 95 per Spigelman CJ [83 and following]. In my opinion judicial decisions relating to the enforcement of judgments which are under appeal cannot be readily applied to interlocutory stay of proceedings which are the subject of an application in the nature of prohibition, but in principle the inherent power of the Court re-conferred by s.23 of the Supreme Court Act 1970 extends to stay of proceedings in those circumstances. The power exists because it is necessary for the administration of justice, and it is to be exercised where it is necessary to exercise it. The power to order a stay is discretionary and such an intervention should not take place lightly; the outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be clearly shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue, and that the outcome will be so difficult to remedy or otherwise so adverse and severe in its impact that interlocutory intervention by the Court of Appeal should take place notwithstanding that there has not been an opportunity for full consideration. Questions of convenience are relevant, but not, in my view, simply as the balance of convenience: the test is a test of necessity and is not satisfied simply by assessing the relative convenience and harm for one side and the other. An intervention should not be made lightly in the present circumstances, where IRC, itself a superior court the decisions of which are protected from review by s.179 of IR Act , has after argument made a carefully considered and fully stated decision in favour of proceeding to deal with the business before it.
24 The grounds relied upon for the stay went essentially to the proposition that the respondents wish to challenge, on a number of fronts, the Commission's jurisdiction to entertain the applicant's claim for relief under s 106 of the Industrial Relations Act. In particular, it is said the challenge raises issues addressed by the Court of Appeal in Solution 6, which is now the subject of proceedings in the High Court of Australia. It was submitted no point would be served in the parties running up costs by the presentation of proceedings presently in this Court in light of the proceedings in the Court of Appeal and the High Court.
25 There are a number of reasons for rejecting the stay application. First, the Commission in Court Session is a superior court of record whose decisions are protected from review by s 179 of the Industrial Relations Act. The respondents, in seeking to take their claim for prerogative relief to the Court of Appeal at this interlocutory stage, are obviously seeking to avoid the application of s 179 and rely on Solution 6 at [113], [122], [123] and [125]. Proper weight should be given to the existence of s 179 providing, as it does, that decisions of the Commission are final. Avoidance of its terms should not be encouraged by this Commission by granting stay applications merely because they have been sought and where it is not evident that the respondents have a good arguable case or that it is in the interests of justice to do so. That a respondent may be precluded from seeking a review of a decision or purported decision, once made, beyond an appeal to a Full Bench of the Commission, is the very reason for the existence of s 179. It does not seem to me that encouragement of the means to avoid that provision by granting a stay without a very sound basis to do so would be consistent with Parliament's intention.
26 Secondly, as Bryson JA observed, the test of whether to grant a stay in the circumstances of this case "is a test of necessity and is not satisfied simply by assessing the relative convenience and harm for one side and the other." The necessity in this case might be said to arise because, if the Commission in Court Session were to decide the matter, the intervention of the Court of Appeal could only be on the basis that any decision of the Commission fell foul of the Hickman principle: R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and, therefore, it would be unable to pre-empt or prevent jurisdictional error. This proposition assumes there would be or would likely to be jurisdictional error, something the respondents in this case have not established and, in any event, it tends to ignore what s 179 is obviously intended to achieve, namely, that decisions of the Commission in Court Session are final subject only to an appeal to the Full Bench.