Health Services Union NSW v Michael Alexander Williamson

Judgment 1The Health Services Union NSW ("HSU") has filed an application seeking to recover monies from Michael Alexander Williamson ("the respondent") who, from time to time, held the position of Secretary, State Secretary and General Secretary of the HSU. 2The application alleged that the respondent, being an officer of the HSU (formerly HSUeast), did contravene a provision of Div 5 of Pt 4 of Ch 5 of the Industrial Relations Act 1996 ("the Act"), namely, ss 267 and 268. Those sections provide: 267 Acting dishonestly to deceive or defraud An officer of a State organisation must not, with intent to deceive or defraud the organisation or the members of the organisation or for any other fraudulent purpose, act dishonestly in the exercise of any of the powers or the discharge of any of the duties of his or her office. Maximum penalty: 100 penalty units. 268 Use of position for profit An officer of a State organisation must not make improper use of the officer's position as such an officer to gain, directly or indirectly, an advantage for the officer or for any other person or to cause detriment, loss or damage to the organisation. Maximum penalty: 100 penalty units. 3Section 270 of the Act, upon which the HSU relies, empowers the Commission in Court Session (the Industrial Court) to order a person to pay compensation to the State organisation that has suffered loss or damage as a result of the act or omission that constituted the offence: 270 Compensation to State organisation (1) If the Commission convicts a person of an offence under this Division, the Commission may, if satisfied that a State organisation has suffered loss or damage as a result of the act or omission that constituted the offence, in addition to imposing a penalty, order the convicted person to pay compensation to the organisation in the amount that the Commission specifies. (2) If an officer of a State organisation contravenes a provision of this Division in relation to an organisation, the organisation may, whether or not the person has been convicted of an offence under this Division in relation to that contravention, recover from the officer as a debt due to the organisation by action in the Commission: (a) if that officer, or any other person made a profit as a result of the contravention or failure-an amount equal to that profit, and (b) if the organisation has suffered loss or damage as a result of the contravention or failure-an amount equal to that loss or damage. (3) In determining the amount of compensation to award under this section, the Commission must have regard to any amount that has been paid to the organisation or that the organisation is entitled to be paid by way of damages awarded in civil proceedings.

Notices of motion 4The HSU moved the Court, by way of notice of motion, for an order pursuant to s 151 of the Civil Procedure Act 2005 ("the CPA") that the proceedings in the Industrial Court be transferred to the Supreme Court of New South Wales. The motion was supported by an affidavit of Selwyn Leslie Black, solicitor with carriage of the matter for the HSU. The affidavit indicated that the HSU had also commenced proceedings by way of summons against the respondent, J & M Williamson Investments Pty Limited, Peter Mylan, Kathy Jackson and Kerrie Seymour in the Supreme Court. Against Mr Williamson, damages under the general law were sought and relying on s 270 of the Act an amount was sought equivalent to profit made by Mr Williamson arising from pleaded contraventions of ss 267 and 268 of the Act and loss and damage as a result of Mr Williamson's pleaded contraventions of ss 267 and 268 of the Act. Against the other defendants damages and declarations, in particular in relation to salaries paid to certain of the defendants, were variously sought. Mr Black deposed that the factual and legal issues for determination in the Industrial Court in relation to certain dealings by the respondent almost all arise for determination in the Supreme Court proceedings. 5On 27 November 2012, the respondent filed a notice of motion in the Industrial Court opposing the transfer of the proceedings to the Supreme Court and seeking an order that the proceedings be dismissed. 6In respect of the transfer of proceedings, the respondent's contention was that, being criminal in nature, proceedings under ss 267 and 268 are unable to be transferred to the Supreme Court pursuant to s 151 of the CPA. 7In respect of the HSU's substantive application, the respondent asserted that: (a) no proceedings are instituted or have been instituted under or for an offence relevantly against ss 267 and 268. In the absence of such proceedings, the Industrial Court did not have jurisdiction to make an order under s 270 because that section provides for the granting of relief only if a proceeding is instituted under ss 267 and 268; (b) the events alleged by the applicant occurred more than 12 months prior to the institution of the proceedings. Proceedings for an offence under the Act are statute barred after a period of 12 months pursuant to s 398 of the Act. Accordingly, no proceedings could be instituted under s 270 of the Act; and (c) the proceedings should be struck out as there was no valid cause of action.

Submissions for the respondent 8The respondent submitted the statutory context of the provisions of Div 5 of Pt 4 of Ch 5 of the Act, impelled a conclusion that the proving of a contravention of the provisions referred to in s 270 of the Act required the proving of a criminal offence. Given that the section requires the proving of a criminal offence and was, therefore, criminal in nature, the respondent submitted it could not be transferred to the Supreme Court. Further, any new proceedings for an offence would be statute barred. 9In support of his contentions, the respondent referred to the predecessor provisions in the Industrial Relations Act 1991 ("the 1991 Act"), namely, ss 487 and 488: Compensation to organisation 487. (1) If the Industrial Court convicts a person of an offence under this Subdivision, the Industrial Court may, if satisfied that an organisation has suffered loss or damage as a result of the act or omission that constituted the offence, in addition to imposing a penalty, order the convicted person to pay compensation to the organisation in the amount that the Industrial Court specifies. (2) In determining the amount of compensation to award under this Subdivision, the Industrial Court must have regard to any amount that has been paid to the organisation or that the organisation is entitled to be paid by way of damages awarded in civil proceedings. Recovery of compensation 488. If an officer of an organisation contravenes a provision of this Subdivision in relation to an organisation, the organisation and, whether or not the organisation has instituted proceedings, any member of the organisation may, whether or not the person has been convicted of an offence under this Subdivision in relation to that contravention, recover from the officer as a debt due to the organisation by action in the Industrial Court: (a) if that officer, or any other person made a profit as a result of the contravention or failure-an amount equal to that profit; and (b) if the organisation has suffered loss or damage as a result of the contravention or failure-an amount equal to that loss or damage. (respondent's emphasis) 10The Court's attention was drawn to the words in emphasis, which it was contended made explicit that proceedings for an offence were not necessary before an order for compensation could be made. The respondent observed the words in emphasis had been specifically deleted in s 270 of the Act and thereby the meaning of the statutory provision had been changed. 11The respondent next referred to the Explanatory Note to the Industrial Relations Bill 1991, which described the subdivision in which s 488 appeared as follows: Subdivision 1 provides that officers of organisations are required to act honestly and with reasonable care and diligence in the performance of their functions. They must not use their positions for profit and are liable to compensate the organisation for any loss sustained as the result of a failure to comply with these requirements. Officers must also disclose any interest that they may have in any contract or proposed contract being made with the organisation. "Officer", for the purpose of these provisions, extends to persons who take a part in the management of the organisation even if they do not hold an office. 12This Note was compared to the relevant Explanatory Note to the Industrial Relations Bill 1996, which stated: Division 5 Duties and liabilities of officers Division 5 deals with the duties and liabilities of officers of State organisations. Officers must not act dishonestly, with intent to deceive or defraud an organisation or its members. They must not use their positions for profit and are liable to compensate the organisation for any loss sustained as the result of a failure to comply with these requirements. Officers must also disclose any interest that they may have in any contract or proposed contract with the organisation. Contraventions of the Division are criminal offences. (respondent's emphasis) 13It is apparent that the HSU relies on s 270(2) of the Act for its application on the basis that the organisation may, whether or not the respondent has been convicted of an offence under Div 5, seek to recover from the respondent as a debt due to the organisation. The respondent submitted, however, that s 270(2) was designed to deal with the situation where the elements of an offence are proven, but where: (a) no conviction has yet been recorded; (b) no conviction is recorded. An example of this situation is an order under s 10 of the Crimes (Sentencing Procedure) Act 1999; (c) no conviction can be recorded given the effect of s 290D of the Act. That section absolves an administrator from liability for any act done in good faith. 14In support of this submission the respondent referred to Sent v Jet Corp of Australia Pty Ltd [1986] HCA 35; (1986) 160 CLR 540 and what he contended were analogous provisions of the Trade Practices Act 1974(Cth) ("TPA"). The relevant provisions of the TPA were identified as ss 82(1), 82(2), 87(1) and 87(1A) respectively: 82(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention. 82(2) An action under sub-section (1) may be commenced at any time within 3 years after the date on which the cause of action accrued. ... 87(1) Without limiting the generality of section 80, where, in a proceeding instituted under, or for an offence against, this Part, the Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in (whether before or after the commencement of this sub-section) in contravention of a provision of Part IV or V, the Court may, whether or not it grants an injunction under section 80 or makes an order under section80A or 82, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in sub-section (2) of this section) if the Court considers that the order or orders concerned will compensate the first-mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage. 87(1A) Without limiting the generality of section 80, the Court may, on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in (whether before or after the commencement of this sub-section) in contravention of a provision of Part V, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in sub-section (2)) if the Court considers that the order or orders concerned will compensate the first- mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss ordamage. 15The respondent submitted there was some similarity between s 87(1) of the TPA and s 270(1) of the Act, and between s 87(1A) and s 270(2) of the Act. 16The respondent referred to what was said by the Court (Gibbs CJ, Mason, Brennan, Deane and Dawson JJ) at 544: Sub-section (1A) of s 87 contains no express condition that there should be proceedings instituted under or for an offence against Part VI in respect of the conduct complained of. Considering sub-s.(1A) in isolation, it might be regarded as conferring on any person a right to claim compensatory relief for loss or damage caused by conduct engaged in in contravention of Part V irrespective of the making of any claim for relief under any other provision of Part VI. (at 544) 17However, as the respondent pointed out, the Court held there were a number of countervailing indicia: Where conduct in contravention of Part V causes loss it would be curious to confer on a person or a number of persons both a right to compensation under s 82 and, quite independently, a right to the discretionary grant of compensation under s 87(1A). It would be more curious to prescribe a time limitation for commencing an action under s 82(1) while the Court retained a discretion to grant commensurate relief in independent proceedings after the prescribed time had expired. (at 544) ... ...s 87 appears immediately after s 86 in Part VI which confers jurisdiction on the Federal Court to hear and determine "actions, prosecutions and other proceedings under this Part". The earlier sections of Part VI provide for actions, prosecutions and other proceedings for the granting of specific kinds of relief. If s 87 were intended to provide for the granting of relief in proceedings independent of actions, prosecutions and other proceedings for which Part VI provides, it would have been more appropriate to insert s 87 prior to s 86. (at 545) ... the language of s 87(1A) appears to be complementary to s 87(1): both sub-sections confer a right to seek a discretionary order for compensation on persons suffering loss by conduct engaged in in contravention of Part V, sub-s.(1) conferring the right on parties, sub-s.(1A) conferring the right on persons generally whether parties or not. (at 545) 18The High Court concluded that: [T]he better view is that compensatory relief under sub-s.(1A) can be applied for and granted only if a proceeding is instituted or has been instituted under or for an offence against a provision of Part VI other than s 87 in respect of conduct engaged in in contravention of Part V. Thus sub-s.(1) provides for the discretionary granting of compensatory relief in favour of parties to such proceedings and sub-s.(1A) provides for the discretionary granting of compensatory relief in favour of persons who may not be parties to such proceedings but who make applications in such proceedings. In either case the power to grant relief under s 87 is dependent on the institution of proceedings under a provision of Part VI other than s 87. (at 545) 19The respondent submitted the conclusion that s 270(2) of the Act was designed to deal with the situation where the elements of an offence are proven, but there is no conviction, was fortified by the existence of a shorter time limit for proceedings for an offence as opposed to the longer time limit for civil proceedings. Section 398(1) of the Act provides that proceedings for an offence (other than an offence under s 180 or an offence referred to in subsection (2)) may be commenced no later than 12 months after the offence was alleged to have been committed. Section 398(2) provides that proceedings for an offence against ss 267-269 of the Act may be commenced no later than 5 years after the offence was alleged to have been committed. 20The respondent also referred to s 270(3) of the Act which provides that: (3) In determining the amount of compensation to award under this section, the Commission must have regard to any amount that has been paid to the organisation or that the organisation is entitled to be paid by way of damages awarded in civil proceedings. The respondent submitted s 270(3) contemplates that the civil proceedings referred to were separate to and distinct from the proceedings under s 270. 21The respondent submitted: In essence, Section 270 of the Act provides for the granting of relief for loss or damage only if a proceeding is instituted, under or for an offence relevantly against ss 267 and 268. No such proceedings are instituted or have been instituted. Absent such proceedings, the Commission does not have jurisdiction to make an order under s 270. The proceedings should be dismissed. Further: (i) the proceedings under s 270 would be criminal in nature and could not be transferred under the Civil Procedure Act; (ii) Any proceedings for an offence, if now commenced, would be out of time: s 398. (iii) To the extent that there is any residue of the proceedings that are within time, the applicant would be subject to prosecutorial duties. 22In relation to the transfer of proceedings, the respondent submitted it was "reasonably clear" that only civil proceedings could be transferred from the Industrial Court to the Supreme Court pursuant to s 151 of the CPA. Section 151 provides: 151 Transfer of proceedings between Supreme Court and Industrial Court (1) If either the Supreme Court or the Industrial Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court. (2) If either the Supreme Court or the Industrial Court is satisfied, in relation to proceedings before it, that: (a) there are related proceedings pending in the other court, and (b) it is more appropriate for the proceedings to be heard, together with the related proceedings, in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court and heard together with the related proceedings. (3) No appeal lies against a decision of the transferor court to make, or not to make, an order under this section. 23The respondent noted that s 4 of the CPA states that Parts 3 - 9 apply to each court referred to in Schedule 1 in relation to civil proceedings of a kind referred there. Section 151 is within Part 9. Schedule 1 refers to all civil proceedings in the Industrial Court. "Civil proceedings" is defined in s 3 as "any proceedings other than criminal proceedings".

Submissions for the HSU 24In relation to the Union's standing to conduct a recovery action under s 270(2) of the Act, the HSU characterised the respondent's submissions as being that there were two conditions precedent, namely, that: (i) firstly, proceedings have been "instituted" against the defendant "under or for an offence".... In other words, the Respondent says that the institution of criminal proceedings is a condition precedent for the standing of an organisation to conduct recovery actions under section 270(2); (ii) secondly, that a contravention of the relevant provision has been "proved" as a "criminal offence".... In other words, the finding of criminal contravention to the criminal standard of proof is a further condition precedent for the standing of an organization to conduct recovery actions under section 270(2). According to the respondent, the HSU noted, because neither of these conditions precedent had been satisfied, the HSU had no standing to conduct recovery action under s 270(2). 25The HSU noted that, in the alternative, the respondent contended proceedings by an organisation under s 270(2) were "criminal in nature", by reason of which there is no jurisdiction under s 151 of the CPA for transfer to the Supreme Court (because jurisdiction for transfer is confined to civil proceedings as defined in the CPA). 26The HSU disagreed with the foregoing propositions and, in doing so, identified three main issues in contest in relation to its application: (a) first, on the proper construction of section 270(2) of the Act, whether there are the following condition precedents for an organisation's standing to conduct a recovery action under section 270(2): (i) firstly, the institution of criminal proceedings; (ii) secondly, the finding of criminal contravention to the criminal standard of proof (b) secondly, on the proper construction of section 270(2) of the Act, whether recovery actions by an organization under section 270(2) are properly characterized as "criminal" or "civil" proceedings for the purposes of the CPA, or at all; and (c) thirdly, subject to the Court finding that: (i) the HSU has standing to bring these proceedings under section 270(2) of the Act; and (ii) the proceedings are characterized as "civil proceedings" whether the proceedings should be transferred to the Supreme Court pursuant to section 151 of the CPA. 27Relying on relevant principles of statutory interpretation, the HSU submitted the ordinary grammatical meaning of the words of s 270(2) provides "overwhelming support for the unconditional nature of an organisation's standing to conduct recovery action, and militates overwhelmingly against construing s 270(2) as incorporating the contended conditions precedent to such standing". 28The HSU next submitted that there were a number of aspects of the statutory context which support the construction of s 270(2) as conferring unconditional standing on an organisation to conduct recovery actions against an officer (and which weigh against construing the organisation's standing as subject to the conditions precedent that criminal prosecutions have been instituted and proved). 29Firstly, s 270 is properly construed as creating a comprehensive, substantive and procedural framework for recoveries by organisations in respect of contraventions of the Act by officers, in two distinct and complementary contexts: (i) in the context of a criminal proceedings, which the organisation has no direct standing under the Act to conduct: section 270(1). In this context, compensation is ancillary to the criminal prosecution; (ii) in the context of civil proceedings, in respect of which the organisation has unconditional standing under the Act itself to conduct proceedings: section 270(2). In this context, the organisation's right to "recover" is independent of the criminal prosecution. 30Secondly, that the adoption of the respondent's contentions would lead to an anomalous inconsistency in the operation of ss 270(1) and 270(2), having regard to the respondent's construction of the expression "whether or not the person has been convicted of an offence" in s 270(2). 31In relation to the respondent's reliance on a shorter time limit for criminal proceedings, compared to civil proceedings, the HSU submitted: (a) the issue of time limit is irrelevant to whether s 270(2) should be construed as subjecting an organisation's standing to conduct recovery action to the conditions precedent that criminal proceedings for an offence be instituted and successful prosecuted; (b) the relevant limit for criminal action in s 398 of the Act is five years rather than the one year suggested by the respondent. 32In relation to the respondent's reliance on s 270(3), the applicant submitted that provision was irrelevant to the proper construction of s 270(2) because: (a) section 270(3) only purports to circumscribe the discretion of the Commission to order "compensation"; (b) consequently, s 270(3) is only material to the operation of s 270(1). This is because it is only s 270(1) which describes the available relief by reference to "compensation". By way of contrast, s 270(2) describes the relief available under that section by reference to the more conventional categories of civil relief comprising "debt", "profit" and "loss or damage"; (c) an obvious reason why s 270(3) should seek explicitly to circumscribe the discretion to order "compensation" under section 270(1), but not seek to circumscribe the discretion to order relief under section 270(2), relates to that different nature of the relief available under those respective sections. With respect to section 270(1), the relief is defined as "compensation...that the Commissioner specifies" under section 270(1), and there is arguably ambiguity about the criteria for the quantification of the compensation, by reason of which some circumscription of the discretion might be appropriate. With respect to section 270(2), the relief is defined by reference to "profit", "loss or damage", and there is no need for clarification of the meaning of those concepts because they are conventional categories of civil relief (which have conventionally defined meaning). In particular, it is conventionally understood that the quantification of recoverable "loss" must take account of amounts otherwise received by way of mitigation of that loss. (d) It is undoubtedly true that section 270(3) contemplates that "civil proceedings are separate and distinct to the proceedings" under s 270(1). That proposition is corroborated by s 271. However, neither that uncontroversial proposition, nor any other aspect of section 270(3), has any bearing on whether: (i) the standing of an organisation to conduct recovery action under s 270(2) should be construed as being subject to the conditions precedent that criminal proceedings have been instituted and successfully prosecuted; (ii) proceedings under s 270(2) should be characterized as "criminal" or "civil". 33The HSU discussed the purpose of the legislation and submitted its interpretation of s 270(2) was consistent with that purpose. The HSU also addressed the respondent's reliance on Explanatory Notes and predecessor legislation and submitted they did not support the respondent's construction of the section. 34In relation to Sent v Jet Corp of Australia Pty Ltd it was submitted there was no basis for drawing an analogy with the provisions of the TPA considered in that case. The applicant submitted: The conclusion reached in the Sent decision was based on considerations unique to the legislative context of the then-existing Trade Practices Act 1974 (TPA). The attempt to draw an analogy from that case is an example of the undue "distraction" of attention from the proper task of construing the statute under consideration by reference to the language, purpose and context of that particular statute. 35The HSU put an alternative position. It was submitted that if the Court were to find that recovery proceedings under s 270(2) were properly characterised as "criminal" proceedings for an offence, the proceedings should not be dismissed for the following reasons: (a) Section 399(1)(c) of the Act provides that "Proceedings for an offence against this Act or the regulations may be instituted.... by a person, or a class, prescribed by the regulations"; (b) Regulation 37 of the Industrial Relations (General) Regulation 2001 provides that: "An industrial organisation concerned in the industry to which the proceedings relate is prescribed for the purposes of section 399 (1) (c) of the Act"; (c) The Applicant comprises an "industrial organisation concerned in the industry to which the proceedings relate"; (d) Consequently, the Applicant has standing to institute and conduct criminal proceedings against the Respondent; (e) Section 398(2) provides that such a prosecution can be commenced within 5 years of the offence; (f) If the proceedings for recovery under section 270(2) are classified as criminal proceedings for an offence, the Applicant concedes that the proceedings have not been instituted to date (but the Applicant says it should not be obliged to further deplete its resources by doing so). 36On the question of whether proceedings under s 270(2) are criminal, the HSU submitted if the Court found that s 270(2) conferred unconditional standing on an organisation to conduct civil recovery proceedings, the proceedings under section 270(2) are unequivocally civil (and not criminal). It was submitted this was supported by the facts that: (a) the conduct of those proceedings does not involve the laying of a charge; (b) the conduct of those proceedings does not involve a plea; (c) the Applicant does not seek (and the Respondent is not exposed) to the imposition of a criminal penalty in the proceedings; (d) the proceedings manifestly fall outside the procedure prescribed for the conduct of proceedings "for an offence" under the Act: see section 397, 399 of the Act; (e) the relief available under section 270(2) (namely, recovery of a "debt" "by action" in relation to "profit" or "loss and damage" arising from the alleged contraventions) bears the quintessential hallmark of civil proceedings. 37In relation to the transfer of proceedings under s 151 of the CPA, it was submitted that the circumstances relevant to the issue of transfer included the following: (a) the Supreme Court proceedings cover substantially the whole of the legal and factual issues that arise in these proceedings; (b) the matters arising in these proceedings are relevant to other claims pressed in the Supreme Court proceedings; (c) both sets of proceedings are complex, and the agitation in 2 courts of substantially the whole of the matters raised in these proceedings, would result in large additional costs to the parties and to the Courts. 38It was further submitted that the just, quick and cheap resolution of the various claims between the parties weighed overwhelmingly in favour of consolidating the entirety of the dispute between the parties into a single set of proceedings; that it was more appropriate the consolidated proceedings be determined in the Supreme Court for the following reasons: (a) the proceedings in the Supreme Court include claims against 3 other defendants; (b) the proceedings in the Supreme Court include claims that could not have been commenced in this Court, including claims for negligence and for repayment of overpaid salary; (c) none of the claims against the other 3 defendants could have been commenced in this Court; (d) it would not be appropriate to bring 3 additional defendants into this Court, on the basis that a part of the proceedings against the one defendant who is in both proceedings, is within the jurisdiction of this Court; (e) there is a stay application by the Respondent presently pending in the Supreme Court, which has already been the subject of case-management; (f) there is a further set of related proceedings in the Federal Court between the Applicant and Peter Mylan (being one of the defendants in the Supreme Court proceedings). It is the subject of a pending application to cross-vest those proceedings to the Supreme Court (for the purpose of consolidation with the existing Supreme Court proceedings). That application is set down for hearing on 21 December 2012.

Consideration 39It was accepted by both parties that under s 270(1) of the Act, to enable the Court to order compensation, there first had to be a conviction for an offence under ss 267, 268 or 269 of the Act. That is, proceedings under s 270(1) were criminal in nature. 40As it would have been evident from the earlier summary of submissions, the issue that separated the parties was in relation to s 270(2) of the Act. The respondent, Mr Williamson, contended that s 270, including s 270(2), provides for the granting of relief for loss or damage only if a proceeding is instituted under or for an offence, relevantly, against ss 267 and 268. As no such proceeding is instituted or has been instituted, the Industrial Court does not have jurisdiction to make an order under s 270(1) or s 270(2). Therefore, the proceedings should be dismissed. 41Further, the respondent submitted that the proceeding under s 270(2) would be criminal in nature and could not be transferred under the CPA. Any proceeding for an offence, if now commenced, would be out of time: s 398 of the Act. 42The applicant, on the other hand, submitted that under s 270(2) an organisation had unconditional standing to commence recovery action regardless of the existence, conduct or status of any criminal prosecution. It was submitted recovery actions under s 270(2) were civil proceedings and fell within the transfer jurisdiction under s 151 of the CPA. Accordingly, the proceeding could be and should be transferred to the Supreme Court, pursuant to s 151 of the CPA. 43In my opinion, it is not correct that in order for the applicant to have standing to conduct a recovery action under s 270(2) of the Act, criminal proceedings must have been instituted and that a contravention of ss 267, 268 or 269 had been "proved" as a "criminal offence". I consider the applicant was correct in submitting recovery actions under s 270(2) are civil proceedings, and fall within the transfer jurisdiction under s 151 of the CPA, although I do not consider the answer is as clear as the applicant contended. On the face of Div 5, contravention of s 267-269 is an offence and there is nothing expressly stated in the legislation to the contrary.

Statutory interpretation 44The issue in this case falls to be determined according to the principles of statutory interpretation. It is a "basic principle" that the task of statutory construction must begin with a consideration of the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] referred to with approval in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 293 ALR 412 at [23] per French CJ and Hayne J. The plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue continued (footnotes omitted): Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. 45In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross, French CJ and Hayne J elaborated as follows at [24]-[25] (footnotes omitted): [24] The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision "by reference to the language of the instrument viewed as a whole", and "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". [25] Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative "intention" is to use a metaphor. Use of that metaphor must not mislead. "[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have" (emphasis added). And as the plurality went on to say in Project Blue Sky: "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." 46Further, in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross at [70] Crennan and Bell JJ stated: Whilst consideration of extrinsic materials should not displace the clear meaning of the text of a provision, the purpose of a provision may be elucidated by appropriate reference to them. It has often been said that the clear meaning of the text of a statute or a statutory provision is the surest guide to the meaning of "the intention of the legislature", an expression used metaphorically. Nevertheless, it is uncontroversial that in determining the meaning of the text of a statute or provision a court may take into account the general purpose and policy of a provision and, in particular, the mischief that it is intended to remedy.... 47In Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27, French CJ, Hayne, Kiefel and Bell JJ stated at [26]: [26] The disposition of this appeal turns upon the correct construction of s 9(4). The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose. 48In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 290 ALR 647, French CJ and Crennan J, Gummow and Hayne JJ, generally agreeing in a separate joint judgment, observed at [41]: [41] The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions. See also HSUeast and Director-General, Department of Finance and Services [2012] NSWIRComm 112 at [24]-[27]. 49In addition, ss 33 and 34 of the Interpretation Act 1987 must be borne in mind. Those sections are in the following terms: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes: ... (e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made, (f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House, ... (h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament. (3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to: (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), ... 50Section 270(2) provides that if an officer of a State organisation (of which the applicant is one) contravenes a provision of Div 5, the organisation may, whether or not the person has been convicted of an offence under the Division in relation to that contravention, recover from the officer as a debt due to the organisation by action in the Commission. When one considers the ordinary meaning of the language of the subsection it seems to me it is susceptible of more than one meaning. I do not agree with the applicant that the language provides "overwhelming support for the unconditional nature of an organisation's standing to conduct recovery action, and militates overwhelmingly against construing section 270(2) as incorporating the contended conditions precedent to such standing". 51The subsection refers to a contravention of a provision of Div 5. The contravention might be in the civil sense or the criminal sense. In NRMA v Gould (1995) 18 ACSR 290 at 292-293 Young J (as his Honour then was) stated, "Normally the word 'contravention' indicates an act or omission which is blameworthy and may lead to civil or criminal consequences". If used in the criminal sense it would require the organisation to prove the elements of the offence. The words "whether or not the person has been convicted of an offence" (my emphasis) leave room for the respondent's contention that the purpose of s 270(2) is to deal with the situation where no conviction is recorded (for example, under s 10 of the Crimes (Sentencing Procedure) Act 1999), but the elements of a criminal offence have been proven. 52On the other hand, the words "whether or not the person has been convicted of an offence" provide scope to construe them as allowing a recovery action to be pursued in the absence of both a criminal conviction and proof of a criminal contravention of ss 267, 268 or 269 of the Act. In other words, that s 270(2) provides standing to the applicant to pursue a civil recovery action in the absence of having to prove criminality. This would be so if one were to construe the words "contravenes" and "contravention" in the civil sense, thereby providing standing for an organisation to pursue proceedings in the nature of civil proceedings to recover a debt, subject to proving contravention based on the civil standard of proof if the person had not been convicted of an offence. 53This ambiguity leads one to consider the ordinary and grammatical meaning of the words of the subsection having regard to their context and legislative purpose rather than merely seeking to rely on the words themselves. 54Division 5 of Pt 4 of the Act sets out the duties and liabilities of officers of State organisations. Sections 267-269 provide for certain offences. Section 270(1) makes it a condition precedent that a person is convicted of an offence under Div 5 before the Court may impose a penalty and award compensation for loss or damage that resulted from the act or omission that constituted the offence. By s 399(1)(a) and (b) of the Act, proceedings for an offence against the Act or the regulations may be instituted by the Minister, by a person with the written consent of the Minister, or by an inspector. By s 399(1)(c) of the Act and reg 37 of the Industrial Relations (General Regulation) 2001, an industrial organisation may institute proceedings for an offence against the Act or the Regulations. The applicant is an industrial organisation of employees registered as a State organisation. 55Section 270(2) deals with the contravention of a provision of Div 5 "in relation to an organisation" by an officer of a State organisation. The qualification "in relation to an organisation" does not appear in s 270(1). Section 270(2) gives a State organisation (not the Minister or an inspector on behalf of the organisation) standing to recover from the officer any profit or loss or damage resulting from the contravention as a debt due to the organisation by action in the Commission. The organisation has the necessary standing whether or not the person has been convicted of an offence under Div 5 in relation to the contravention. Thus, if an organisation wished to recover for loss or damage and profit made by the officer as a result of the contravention, it would have to institute proceedings under s 270(2). 56It makes little sense that: (a) s 270(1) enables a State organisation to institute proceedings for an offence, provides for the Court to order the convicted person to pay compensation to the organisation for loss or damage resulting from the act or omission that constituted the offence (and imposition of a penalty) if the person is convicted; and (b) on the respondent's argument, s 270(2) requires a State organisation to again institute proceedings for an offence and prove the offence in order to recover an amount for loss and damage caused by the contravention plus any profit made by the officer as a result of the contravention. 57This approach would mean that a State organisation had the choice of pursuing one of two criminal prosecutions: the first (under s 270(1)) would have to result in a conviction, following which the Court may order compensation for loss or damage (and impose a penalty); the second (under s 270(2)) need not result in a conviction, but if the offence was proven, the organisation could recover for the same loss or damage available under the first prosecution plus any profit the officer made as a result of committing the offence. The approach lacks logic. 58A more coherent interpretation of s 270(2) and in particular the words "whether or not the person has been convicted of an offence..." is that it gives standing to the organisation to pursue an action for recovery of a debt subject to it being established the officer contravened a provision of Div 5 on the civil standard of proof. 59Moreover, the language used in s 270(2) would not usually be associated with a criminal prosecution. The subsection refers to an action for recovery of a debt, normally understood to constitute a civil procedure. That is in contradistinction to the language in s 270(1), which refers to the ordering of a convicted person to pay compensation to the organisation in an amount specified. The different description of remedies tends to reinforce the inference that ss 270(1) and 270(2) prescribe different remedial procedures. 60It may also be noted that proceedings for an offence against the Act or the regulations are to be dealt with summarily (s 168, s 397(1)) in accordance with the procedure set down in the Criminal Procedure Act 1986: Pt 5 of Ch 4. On the respondent's argument that procedure would need to be followed in order to prove an offence under s 270(2). Then it appears there would need to be separate proceedings to recover the debt: s 270(2) refers to "by action in the Commission". It does not seem to me that an action for recovery of a debt could be regarded as merely ancillary to a determination of guilt for contravening a provision of Div 5 in the same way an order for compensation could be ancillary to a criminal conviction (see s 270(1)). It makes far more sense that in the course of determining an application for recovery under s 270(2), the Court would be required to determine the threshold question of whether there had been a contravention, such determination being made according to the civil standard of proof. 61Another difficulty with the respondent's position is that it must follow from the manner in which he put his case that the word "convicted" in both ss 270(1) and 270(2) refers to the formal recording of a conviction in respect of a proven criminal contravention and not merely the commission of an offence. If an offence under Div 5 was proven but no conviction was recorded, the organisation would be precluded from receiving compensation for loss or damage. The organisation could conceivably fall back on s 270(2), but as the applicant submitted, there would appear to be no coherent reason why (if no conviction is recorded against the officer in respect of a proven contravention) the legislature would: (a)deny jurisdiction to the Court to order "compensation"; but (b) confer, as a result of that finding, jurisdiction on the organisation to commence fresh criminal proceedings to recover as a debt any profit gained by the officer or any amount for loss and damage in respect of the same contravention. 62Still dealing with contextual considerations, the respondent referred to the existence of a shorter time limit for proceedings for an offence (s 398), as opposed to the longer time limit for civil proceedings. It was submitted this fortified the conclusion that compensatory relief could only be applied for and granted under s 270(2) if a proceeding was instituted or had been instituted under or for an offence against a provision of Div 5. The time limit in respect of ss 267-269 is five years: s 398(2). For other offences it is generally 12 months: s 398(1). It does not seem to me there is much substance in the respondent's submission regarding time limits. It is not clear what it has to do with the applicant's standing to pursue relief under s 270(2). 63The respondent next referred to s 270(3) and contended that the civil proceedings referred to therein were separate from and distinct to the proceedings under s 270. Section 270(3) provides that "in determining the amount of compensation to award under this section, the Commission must have regard to any amount that has been paid to the organisation or that the organisation is entitled to be paid by way of damages awarded in civil proceedings". 64The only other reference to "compensation" in s 270 (apart from s 270(3)) is in s 270(1). It is difficult to see how action for recovery of a debt in s 270(2) could be regarded as "compensation", which supports the conclusion that the reference to "compensation" in s 270(3) is a reference only to s 270(1). As the applicant submitted, a reason why s 270(3) circumscribes the discretion to order "compensation" under s 270(1), but does not seek to circumscribe the discretion to order relief under s 270(2), relates to the different nature of the relief available under those respective sections. I agree with the submission that: With respect to section 270(1), the relief is defined as "compensation...that the Commissioner specifies" under section 270(1), and there is arguably ambiguity about the criteria for the quantification of the compensation, by reason of which some circumscription of the discretion might be appropriate. With respect to section 270(2), the relief is defined by reference to "profit", "loss or damage", and there is no need for clarification of the meaning of those concepts because they are conventional categories of civil relief (which have conventionally defined meaning). In particular, it is conventionally understood that the quantification of recoverable "loss" must take account of amounts otherwise received by way of mitigation of that loss. 65If that approach to the word "compensation" in s 270(3) be wrong, and it is to be taken to refer to both s 270(1) and s 270(2), then it is my view that the reference to civil proceedings is a reference to proceedings other than those contemplated by s 270(2). This is because s 270(3) refers to "damages in civil proceedings" and damages is not what is referred to in s 270(2). Indeed, nowhere in the Act is the Industrial Court given power to award common law damages, which is what is being referred to in s 270(3). In other words, the reference to "civil proceedings" in s 270(3) does not serve to reinforce the notion that proceedings under s 270(2) are criminal, but rather refers to civil proceedings in which common law damages may be recovered which are different to the proceedings under s 270(2), which involve an action for recovery of a debt subject to a contravention being proven on the civil standard of proof. 66In my opinion, s 270(3) contemplates that the civil proceedings are separate and distinct to the civil proceedings under s 270(2). That proposition is supported by s 271, which provides: 271 Operation of Division (1) This Division has effect in addition to, and not in derogation of, any rule of law relating to the duty or liability of an officer of a State organisation and does not prevent the institution of any civil proceedings in respect of a breach of such a duty or in respect of such a liability. ... 67Turning to the purpose of the legislation, s 3(d) of the Act provides that one of its objects is: to encourage participation in industrial relations by representative bodies of employees and employers and to encourage the responsible management and democratic control of those bodies. 68The criminal process is usually initiated by the state and is directed towards the punishment of an individual who is alleged to have breached a rule of social conduct for which such punishment is prescribed. The civil process is more about the vindication of private rights where the outcome may be compensation or resolution of a dispute. It must be said, however, the distinction between criminal and civil cases is often blurred. 69Under Div 5, ss 267-269 constitute offences. The offender may be prosecuted by the state (eg, the Minister) and, under the Regulation, standing is given to the State organisation to prosecute. The threat of criminal sanction would obviously assist to "encourage the responsible management and democratic control of those bodies". One would usually expect the state, given its role and resources, to pursue a criminal prosecution under Div 5. The option is provided to the State organisation to pursue a criminal prosecution if the state does not act, for example, but one would expect that the preferred option - one more appropriate for an industrial organisation that may have suffered loss as a result of an officer's misconduct - would be a civil action to recover debt under s 270(2). In that way recovery of money would not be contingent on the institution and successful prosecution of criminal proceedings. 70An organisation may have no interest in or, indeed, the resources to pursue, a criminal prosecution, but on the respondent's submission the organisation would have no choice if it wished to recover losses and profit under s 270(2). Moreover, it seems to me to be quite an unusual provision that requires an organisation that has suffered loss, to have to institute criminal proceedings and establish criminality in order to recover that loss as a debt owed to it. 71Treating s 270(2) as giving standing to an organisation to pursue civil proceedings serves the purpose of the legislation no less than the threat of criminal sanctions. As the applicant submitted, it promotes the legislative purpose by requiring delinquent officers to pay restitution for loss or damage and to forfeit any ill-gotten profit to the organisation where there has been a contravention proved on the civil standard. Requiring the organisation to meet the criminal standard of proof sets the bar higher for the organisation and makes the prospect of recovery from the delinquent officer more problematic.

Legislative history 72 The respondent submitted that his construction of s 270(2) was consistent with extraneous material and with High Court authority on an analogous section. First, the respondent submitted that his contended construction was supported by reference to the history of the legislation. Use of legislative history is permissible in construing a statute. In Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 at 112 McHugh J stated (footnotes omitted): [A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context. The context includes reference to the provision's legislative history and the relevant reports of law reform bodies which detail the perceived evil requiring reform.... 73The respondent referred to the predecessor provisions to s 270, they being ss 487 and 488 of the 1991 Act. The respondent submitted the words "and, whether or not the organisation has instituted proceedings" in s 488 made explicit that proceedings for an offence were not necessary before an order for compensation could be made. Those words, it was submitted, had been specifically deleted in s 270, thereby changing the meaning of the statutory provision. 74Comparing the provisions of the 1991 Act with the current Act it may be seen that: (a)s 487(1) of the 1991 Act corresponds to s 270(1) of the current Act; (b)s 487(2) of the 1991 Act corresponds to s 270(3) of the current Act; and (c)A separate prior section - s 488 - corresponds to what is now s 270(2). 75It does not seem to me that the respondent's submission about the change in meaning is correct. The difference in wording between the two Acts merely means that under the 1991 Act an individual member had standing to pursue recovery of the debt whether or not the organisation had instituted proceedings. The Act no longer provides such standing. The relevant words have been removed under the Act. The underlined wording in s 488 of the 1991 Act did not signify that proceedings for an offence were not necessary before an order for compensation could be made and it follows that the deletion of those words in the Act does not signify that proceedings for an offence are now a condition precedent. 76Earlier I dealt with the respondent's contention that the civil proceedings referred to in s 270 were separate from, and distinct to, the proceedings under s 270. As I noted, s 487(2) of the 1991 Act corresponds to s 270(3) of the current Act. In the same way s 487(2) qualified s 487(1), s 270(3) qualifies s 270(1). I agree with the applicant's submission that it would be unlikely for the relocation of s 488 into s 270(2) to be intended to also limit it by reference to s 270(3), especially without any reference to that change being made to it in the Explanatory Note. As the applicant submitted, the rearrangement: [I]s logically a change to consolidate the provisions relating to liability in a single section, with the operative provisions placed together at the top of the section, and the provision that is ancillary to the first sub-section being placed at the end.

Explanatory Notes 77The respondent next submitted that his contended construction was supported by the Explanatory Notes to the Industrial Relations Bill 1991 and Industrial Relations Bill 1996. The Notes to the 1991 Bill, in referring to the subdivision in which ss 487 and 488 appeared, stated: Subdivision 1 provides that officers of organisations are required to act honestly and with reasonable care and diligence in the performance of their functions. They must not use their positions for profit and are liable to compensate the organisation for any loss sustained as the result of a failure to comply with these requirements. Officers must also disclose any interest that they may have in any contract or proposed contract being made with the organisation. "Officer", for the purpose of these provisions, extends to persons who take a part in the management of the organisation even if they do not hold an office. 78The Notes to the 1996 Bill, in referring to Div 5, stated: Division 5 Duties and liabilities of officers Division 5 deals with the duties and liabilities of officers of State organisations. Officers must not act dishonestly, with intent to deceive or defraud an organisation or its members. They must not use their positions for profit and are liable to compensate the organisation for any loss sustained as the result of a failure to comply with these requirements. Officers must also disclose any interest that they may have in any contract or proposed contract with the organisation. Contraventions of the Division are criminal offences [respondent's underlining]. 79Whilst the 1991 Notes do not refer to criminal offences, it is clear that s 487 was referring to such offences. There is no material difference between s 487 of the 1991 Act and s 270(1) of the Act. The notes to the 1996 Bill, however, refer expressly to the fact that contraventions of ss 267-269 of the Act are criminal offences. There is no doubt that is the case, but as the applicant submitted, the stated liability to compensate is not expressed to be conditional on the institution or successful prosecution of criminal proceedings for an offence. If such a condition were intended, it would be a significant qualification to the obligation that one would expect to be mentioned in the Explanatory Note. Further, that it is said that contravention of a provision constitutes a criminal offence, does not preclude contravention of the provisions also giving rise to civil liability by means of an independent action. It is not uncommon, as the applicant submitted, that breach of particular legislative provisions may both constitute a criminal offence, and also give rise to civil liability for losses arising from the breach: for example, see the Competition and Consumer Act 2010 (Cth), Subdiv B and C of Div 1 of Pt IV - Restrictive Trade Practices, which provide for offences and civil penalties to be imposed in relation to the same conduct and Pt VI - Enforcement and remedies, which provides for, inter alia, damages to be awarded to a person who suffers loss or damage caused by the conduct of a person acting in contravention of Pt IV.

Sent v Jet Corp Australia Pty Ltd 80The details of the respondent's submission regarding Sent v Jet Corp and relevant aspects of the High Court's decision in that case are set out earlier in this judgment. It will be recalled that the respondent sought to apply Sent v Jet Corp Australia Pty Ltd by analogy to support the conclusion that an organisation's standing to pursue civil relief under s 270(2) was subject to an implied condition precedent that criminal proceedings for an offence had been instituted and successfully prosecuted. 81In Sent v Jet Corp Australia Pty Ltd, as noted earlier, the High Court held that three indicia supported the finding that the right to relief under s 87(1A) of the TPA was subject to an implied condition precedent that "a proceeding is instituted or has been instituted under or for an offence against a provision" of the TPA. 82As to the first indicium, s 87(1A) of the TPA empowered the court to grant relief "in the Court's discretion" in respect of a contravention of Pt V by way of compensation. However, s 82 of the TPA conferred a right to relief by way of compensation for breach of the same provision. The High Court held that: [I]t would be curious to confer on a person....both the right to compensation under section 82 and, quite independently, a right to the discretionary grant of compensation under section 87(1A). 83Section 87(1A) of the TPA was not subject to any express limitation period. On the other hand, s 82 was subject to a three-year limitation period. The High Court held that: [I]t would be more curious to prescribe a time limitation for commencing an action under s 82(1) while the Court retained a discretion to grant commensurate relief in independent proceedings after the prescribed time had expired. 84The High Court held that these problems were resolved if it were understood that s 87(1A) of the TPA conferred on the Court a discretionary power, ancillary to its jurisdiction under other provisions of Pt VI (which provided for offences): [T]o grant compensatory relief in whole or in part to one who has been shown to suffer loss in consequence of contravening conduct for which a defendant is convicted under s79 or which has been found against a respondent in civil proceedings instituted under a provision of Part VI other than s 87. 85In relation to the present proceedings, the Act does not (unlike s 82 of the TPA) create any additional and independent jurisdiction for seeking civil relief in relation to contraventions of the provisions of Div 5. Section 270(2) is the sole source of such jurisdiction. 86The second indicium in Sent v Jet Corp Australia Pty Ltd concerned the particular statutory context of s 87(1A) and where it was placed in the scheme of Pt VI. Its placement was held to support the inference that it was intended that s 87(1A) confer a right to civil relief which was merely ancillary to proceeding "instituted under or for an offence against a provision" of the TPA and not create a further stand-alone basis for civil relief. Issues relating to statutory context considered in Sent v Jet Corp Australia Pty Ltd simply do not arise under the Act. 87As to the third indicium, the High Court held: the language of s 87(1A) appears to be complementary to s 87(1): both sub-sections confer a right to seek a discretionary order for compensation on persons suffering loss by conduct engaged in in contravention of Part V, sub-s.(1) conferring the right on parties, sub-s.(1A) conferring the right on persons generally whether parties or not. 88As the applicant submitted, it appears the High Court took the view that the similarity of language ("complementary") in ss 87(1) and 87(1A) of the TPA supported the inference that both sections had equivalent scope and operation (such that the only difference between the scope of the provisions is that 87(1) conferred rights of relief on parties, and 87(1A) conferred rights of relief on persons whether or not they were parties). As s 87(1) (unlike s 87(1A)) was expressly stated to apply only "in a proceeding instituted under, or for an offence against this Part", s 87(1A) appears to have been construed as picking up by implication that restriction, thereby creating a right to civil relief, but only as ancillary to a proceeding "instituted under or for an offence against a provision" of the TPA. 89Unlike ss 87(1) and 87(1A) of the TPA, there is no equivalence of language between ss 270(1) and 270(2) of the Act that supports an inference that ss 270(1) and 270(2) were intended to have an equivalent scope and operation. As it has been demonstrated, the language used in those sections is materially different in a number of significant respects which, as the applicant contended, supports the inference that the sections operate independently.

Proceedings under s 270(2) not criminal 90If proceedings under s 270(2) were criminal in nature there would be no power under the CPA to transfer the proceedings to the Supreme Court. However, it should be evident from what has been considered in this judgment that such proceedings are not criminal proceedings. 91Section 3 of the CPA defines civil proceedings as "any proceedings other than criminal proceedings" and defines criminal proceedings as "proceedings against a person for an offence (whether summary or indictable), and includes the following: (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentence, (d) proceedings on an appeal against conviction or sentence." 92As I have determined, proceedings under s 270(2) of the Act do not involve "proceedings against a person for an offence"; they do not require the institution and successful prosecution of summary criminal proceedings under the Act and the Criminal Procedure Act. The proceedings under s 270(2) are civil in nature.

Transfer under s 151 of CPA 93Section 151(2) of the CPA provides relevantly that: If either the Supreme Court or the Industrial Court is satisfied, in relation to proceedings before it, that: (a) there are related proceedings pending in the other court, and (b) it is more appropriate for the proceedings to be heard, together with the related proceedings, in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court and heard together with the related proceedings. 94Earlier, I summarised the applicant's case for transferring the proceedings to the Supreme Court. It is unnecessary to repeat the applicant's grounds and reasons in that respect. I accept those grounds and reasons provide a proper foundation for the transfer. Section 150(2) of the CPA provides that "proceedings are related if the matters with which they deal are so closely associated as to form part of the same controversy". I am satisfied that test is met in this case. 95I note that senior counsel for the respondent quite fairly conceded that if the Court were to find the proceedings were civil the most convenient forum for dealing with the whole controversy was the Supreme Court. Accordingly, I propose to order the transfer of the proceedings to the Supreme Court. To do so will facilitate the just, quick and cheap resolution of the real issues in the proceedings: see s 56 of the CPA.

Orders 96The Court makes the following orders: (1)The respondent's motion is dismissed. (2)The proceeding in Matter No IRC 1129 of 2012 is transferred to the Supreme Court of New South Wales in accordance with s 151(2) of the Civil Procedure Act 2005. (3)The respondent is to pay the applicant's costs of the motions.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2013