Hunter Quarries Pty Ltd v Morrison

2016/50022: Peter Evans & Associates Solicitors (Appellant in IRC 1126 of 2012) Crown Solicitor's Office (Respondent) File Number(s): 2016/50001 (Formerly IRC2012/1111); 2016/50022 (Formerly IRC2012/1126)

Judgment

1. THE COURT: A Full Bench of the Industrial Court of New South Wales has been convened to hear an appeal by each of Hunter Quarries Pty Limited (Hunter Quarries or the first appellant) and Richard Alexander Badior (the second appellant) against the conviction and sentence of each recorded and imposed by Backman J on 30 October 2009. Each conviction is for an offence under the Occupational Health and Safety Act 2000 and each conviction was imposed after a plea of guilty by each of the first and second appellants.
2. The appellants seek to quash the conviction and withdraw the plea of guilty that each made.
3. The jurisdiction to hear and determine prosecutions under the Occupational Health and Safety Act and appeals from such proceedings is in a state of transition. The legislature has promulgated the Industrial Relations Amendment (Industrial Court) Act 2013 (the Amending Act), as well as amendments to various other statutes. Prosecutions for offences under the Occupational Health and Safety Act now proceed in the District Court of NSW and appeals in relation to such proceedings are heard by the Court of Criminal Appeal. Appeals from convictions of persons for other offences where conviction occurred before the Commission in Court Session or the Industrial Court are also now heard and determined by the Court of Criminal Appeal pursuant to s 5ABA of the Criminal Appeal Act 1912.
4. As one would expect, there are transitional provisions dealing with pending proceedings. It is necessary for this Court to determine, as a preliminary issue, whether the transitional provisions allow it to hear and determine the substantive appeal or whether the matter is required to be heard by the Court of Criminal Appeal. The answer to that issue depends upon the construction of the transitional provisions.

Facts

1. On 14 June 2005, there was a truck accident at Karuah Quarry and the driver, an employee of Hunter Quarries, died. We do not here intend to determine whether the truck accident or the appellants caused the driver's death. On 5 June 2007, proceedings were initiated against Hunter Quarries, Mr Badior and two other individuals, Mr Chevalley and Mr Grugeon. Each of the individuals was a director of Hunter Quarries.
2. On 15 February 2008, each of Messrs Chevalley and Grugeon entered a plea of not guilty to the charges and, on 12 March 2008, Hunter Quarries and Mr Badior each also entered a plea of not guilty.
3. A trial of all four defendants commenced before Backman J in the Industrial Court of New South Wales on 7 October 2008 and, on 9 October 2008, amended applications for orders were sought against each of the four defendants, which were filed by consent in the Court. As a consequence, Hunter Quarries and Mr Badior amended their plea to guilty.
4. Mr Badior and Hunter Quarries were the subject of sentencing proceedings and a sentencing judgment was delivered on 30 October 2009. A costs order was made on 12 November 2009.
5. On 25 March 2010, Hunter Quarries filed an application seeking an order to extend time to seek leave to appeal and appeal. Mr Badior did so on 17 November 2010.
6. On 11 February 2011, Mr Badior filed an amended application for leave to appeal and appeal, raising as an additional ground the invalidity of s 26 of the Occupational Health and Safety Act. On 23 March 2012, applications for leave to appeal and appeal filed by Hunter Quarries and Mr Badior respectively were discontinued by consent, with no order as to costs.
7. On 22 October 2012, the proceedings against Messrs Chevalley and Grugeon were dismissed after the prosecutor sought the withdrawal of the proceedings.
8. On 1 November 2012, Hunter Quarries filed a notice of appeal and application to extend time to appeal and, on 5 November 2012, Mr Badior filed a notice to appeal and application to extend time to appeal. It is these two applications that are currently before the Court.
9. Directions hearings were conducted and orders made for the filing and service of further evidence and submissions, the compilation of an appeal book and the listing of the extension of time application.
10. On 13 February 2013, the application to extend time to appeal was heard by a Full Bench of the Industrial Court, not being the Full Bench as presently constituted.
11. On 17 June 2013, the Industrial Court Full Bench delivered judgment extending time to appeal (Hunter Quarries Pty Limited v Morrison [2013] NSWIRComm 49; (2013) 236 IR 180) and issued the following orders: "(1) Pursuant to s 196 of the Industrial Relations Act 1996 and s 10(1)(b) of the Criminal Appeal Act 1912 leave is granted to Hunter Quarries Pty Limited and Richard Alexanda Badior to extend time to appeal against convictions and sentences imposed by Backman J on 30 October 2009 under the Occupational Health and Safety Act 2000 and consequential costs orders made by her Honour on 12 November 2009. (2) In respect of any summonses to produce that have been served on the prosecutor or the Department of Primary Industries prior to the date of this judgment and in respect of which the applicants claim material has not been produced pursuant to the summonses, the applicants shall identify to the prosecutor the material that has not been produced and which the applicants wish to have admitted in the appeals. This shall be done within 14 days of the date of this judgment. (3) In the event the prosecutor seeks to set aside the summons in whole or in part, it shall file and serve a notice of motion to that effect within a further 14 days. (4) The proceedings are listed before Walton J, Vice-President at 9.30am on Thursday 25 July 2013 for the purpose of making directions including the fixing of any hearing date in the event that it becomes necessary for the Full Bench to determine any issue arising from orders (2)-(3) hereof. (5) Liberty to apply to Walton J, Vice-President on reasonable notice. (6) Costs are reserved."
12. On 26 June 2013, the appellants served draft summonses to produce addressed to the State of New South Wales (Department of Trade and Investment-Resources and Energy) and the Crown Solicitor for the State of New South Wales and, on 2 August 2013, by motion on notice, filed by each of the appellants, leave was sought to issue a further summons to produce, a draft of which had been served on certain persons associated with the respondent.
13. On 6 August 2013, directions were issued for the purpose of preparing for the hearing of the motion in relation to the summonses. Thereafter, some documents were produced and on 26 September 2013 a Full Bench (the second Full Bench) of the Industrial Court heard the motion, notice of which was filed on 2 August 2013.
14. On 11 November 2013, the second Full Bench delivered judgment on the motion (Hunter Quarries Pty Ltd v Morrison (No 2) [2013] NSWIRComm 98; (2013) 237 IR 410) and made the following orders: "(1) The appellants' notice of motion is refused save and except for: (a) paragraphs [3]-[14] in Attachments A and C to the notice of motion in respect of which leave is granted to issue the summonses; and (b) order 5, in respect of which leave is granted. (2) Costs are reserved."
15. Thereafter, further directions were heard in relation to the production of the documents ordered by the Full Bench, during which a claim for privilege was foreshadowed. As a consequence, further directions were made on 17 February 2014 and the Court issued the following directions: "(1) Summonses for Production made returnable before his Honour at 10am on 10 March 2014. The appellant to file any submissions in response to claim for privilege by 3 March 2014. His Honour noted that there would be no argument as to the privilege claim on 10 March 2014 but that the return date would be utilised to hear submissions on and/or deal with any procedural matter concerning the hearing of the appeal. (2) The listing before the Registrar on 19 February 2014 be vacated. (3) To avoid any further delay his Honour proposed to fix the hearing of any privilege claim for half a day on either 28 or 29 April 2014 or 1 or 2 May 2014 (or any other such day which would be fixed) subject to the joint availability of the parties."
16. On 18 February 2014, the Court fixed 1 May 2014 as the date for the hearing of the privilege claim, but, on 26 February 2014, the Court vacated that date. Additional documents were provided and the issue relating to privilege was listed again for hearing on 29 May 2014. Thereafter, there was further disputation between the parties relating to documents and the appellants foreshadowed an application for each of the members of the first and second Full Bench to disqualify themselves on the basis of pre-judgment and/or apprehended bias.
17. On 4 April 2014, at a directions hearing before the Industrial Court, the appellants informed the Court that they did not intend to raise any opposition to the claim for privilege at that stage and that the appellants intended to make an application before the Full Bench that none of the members thereof sit on the hearing of the appeal on the basis of apprehended bias. They asked that the allocated hearing date of 29 May 2014 be utilised for the purpose of hearing that application for disqualification.
18. On 29 May 2014, the Full Bench heard an application that each of the members thereof should disqualify himself and, on 22 October 2014, the applications were refused and costs reserved: Hunter Quarries Pty Limited v Morrison (No 3) [2014] NSWIC 1.
19. Thereafter, directions hearings were conducted on 31 October 2014, and 13 and 14 November 2014, on the last of which dates the Court by consent made directions in chambers, relating to the filing and serving of affidavits, to applications to introduce fresh or new evidence on appeal and to withdraw the pleas of guilty and to direct the service and further processing of preparatory matters relating to the substantive appeal (including the filing of appeal books and a joint chronology).
20. Further directions were made by consent in chambers on 27 February and 26 March 2015. (On 19 March 2015, each of the appellants filed an amended notice of appeal.) Orders were made with respect to appeal books on 11 May 2015 and further directions made in chambers on 18 and 22 May 2015. Directions as to the filing of submissions and certain affidavits were made on 14 August 2015
21. It should be made clear that on 14 August 2015, the President, Justice Walton, raised with the parties issues relating to the transitional provisions and whether the parties had considered whether this appeal should be heard by this Court or the Court of Criminal Appeal.
22. On 4 November 2015, the Full Bench delivering this judgment was convened and appeal books were filed on the following day. The hearing of the appeal commenced on 9 November 2015 at which time a question as to the effect of the transitional provisions was again raised with the parties. From 14 August 2015, parties maintained that this Court is the correct forum.

Legislation

1. As earlier stated, the processing of prosecutions under the Occupational Health and Safety Act is in a state of transition and the determination of whether the Full Bench of the Industrial Court has jurisdiction to hear and determine this appeal involves the construction and interaction of a number of provisions in various statutes. It is appropriate to set out or summarise some of these.
2. The Criminal Appeal Act has a number of relevant provisions. Section 5ABA of the Criminal Appeal Act extends the application of s 5AA, which relates to appeals against the Supreme Court exercising its summary jurisdiction, to appeals in respect of a person convicted of an offence by the Industrial Relations Commission in Court Session. Section 5ABA was inserted by the Amending Act and came into operation on 20 December 2013.
3. The Industrial Relations Commission (the Commission) in Court Session is the name to which each of the operative sections of the Industrial Relations Act 1996 refers and, by operation of s 151A of that Act, the name of the Commission in Court Session is to be the Industrial Court of New South Wales. A reference in that Act or in any other statute to the Commission in Court Session is taken to include a reference to the Industrial Court of New South Wales. As a consequence, references to the Commission in Court Session in the provisions of s 5ABA of the Criminal Appeal Act are taken to be references to the Industrial Court of New South Wales.
4. Section 5AG of the Criminal Appeal Act provides for an appeal from the Full Bench of the Industrial Court to the Court of Criminal Appeal in cases in which an offence under s 32A of the Occupational Health and Safety Act has been found to have occurred and a sentence imposed of any term of imprisonment. This is not the case in this proceeding.
5. However, s 5AG of the Criminal Appeal Act may have an effect on the operation of the doctrine of stare decisis and the relative position of the Industrial Court and the Court of Criminal Appeal. Even if the Industrial Court were not formally bound by judgments of the Court of Criminal Appeal, this Court would not be entitled to depart from such judgments, unless they were plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89.
6. Furthermore, this Court is bound by judgments of the Court of Appeal.
7. Proceedings of the kind in this appeal were governed prior to the latest relevant amendments as follows.
8. The Industrial Relations Act identifies the parties who or which may, subject to s 188 of the same Act, appeal to a Full Bench of the Commission against a decision of the Commission constituted by a single member. The appeal against the conviction and sentence imposed by Backman J is, or purports to be, an appeal to a Full Bench of the Commission against a decision of the Commission constituted by a single member. It is an appeal prosecuted by a party to the proceedings in which the decision was made.
9. According to s 188 of the Industrial Relations Act, an appeal to a Full Bench of the Commission was by leave only. By s 190A of the Industrial Relations Act, interlocutory applications in the appeal could be dealt with by the President of the Commission or a single member nominated by the President, but such member could not deal with leave to appeal or with a stay (see s 190A(4) of the Industrial Relations Act).
10. While not directly relevant, s 194 of the Industrial Relations Act dealt with appeals from the Industrial Registrar and s 197 with appeals from the Local Court. Each section specifies a right of appeal and the jurisdiction of the Commission to hear and determine it.
11. Section 196 of the Industrial Relations Act dealt with appeals from members of the Industrial Court in respect of criminal proceedings. Section 196 of the Industrial Relations Act, is as follows: "s 196 Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912: (a) to the Court of Criminal Appeal - is taken to be a reference to a Full Bench of the Commission in Court Session, and (b) to the Supreme Court - is taken to be a reference to the Commission in Court Session, and (c) to rules - is taken to be a reference to rules of the Commission, and (d) to the Attorney General - is taken to include a reference to the Minister, and (e) to the Director of Public Prosecutions - is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and (f) to the registrar - is taken to be a reference to the Industrial Registrar. (4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs."
12. Section 196 did not prescribe a right of appeal. Nor did it specify the jurisdiction of the Full Bench to hear and determine any such appeal. Section 196(2) applies to any "appeal or reference" in respect of such criminal proceedings. As such the parenthetic phrase in s 196(1) would not initially seem to apply to ss 187, 188, 189 and 190 of the Industrial Relations Act, which grant the ability to appeal, the condition precedent for an appeal (leave) and the capacity of a single member of the Commission to grant a stay.
13. Section 190 of the Industrial Relations Act does not have an equivalent in the Criminal Appeal Act and ss 187, 188 and 189 of the Industrial Relations Act prescribe the process before an appeal exists. This is considered later.
14. A question was raised with the parties as to the application of s 190A of the Industrial Relations Act and submissions were received on that issue. Section 190A is in the following terms: "s 190A Interlocutory and other matters in proceedings on appeal (1) If an appeal is made under this Part to a Full Bench of the Commission, the Commission constituted by the President (or by another member of the Commission nominated by the President) may do any one or more of the following for the purposes of, or in relation to, the appeal: (a) make any consent order in relation to the appeal, (b) grant leave to withdraw or discontinue the appeal, (c) give any directions in relation to the hearing of the appeal, (d) deal with any interlocutory application in the appeal. (2) (Repealed) (3) A member of the Commission who made a decision the subject of an appeal may not constitute the Commission for the purposes of this section. (4) This section does not authorise: (a) the Commission constituted in accordance with this section to grant leave to appeal, or (b) the granting of a stay against the decision appealed against otherwise than under section 190."
15. When this matter was heard ss 187, 188, 189, 190 and 190A had not relevantly been altered. Section 187 now includes a statutory note in the following terms: "Chapter 7A makes provision for appeals to the Supreme Court against such decisions."
16. Meanwhile, s 196 of the Industrial Relations Act was deleted by the Amending Act, to which assent was given on 31 October 2013. It commenced on 20 December 2013.
17. The Amending Act also inserted Chapter 7A into the Industrial Relations Act and the transitional provisions. Chapter 7A deals with appeals to the Supreme Court from a decision of the Commission in Court Session. It does not apply to any appeal "in respect of a conviction for an offence": s 403A(2) of the Industrial Relations Act. A statutory note to s 403A refers to s 5ABA of the Criminal Appeal Act in relation to appeals in respect of convictions.
18. Schedule 4 of the Industrial Relations Act prescribes the savings and transitional provisions relating to operation of the Amending Act. Clause 58 of Schedule 4, which comprises the entirety of Part 16 of the transitional provisions, is in the following terms: "Part 16 - Provisions consequent on enactment of Industrial Relations Amendment (Industrial Court) Act 2013 58 Application of amendments to pending proceedings (1) Meaning of 'pending proceedings' This clause applies in relation to proceedings before a Full Bench of the Commission in Court Session (pending proceedings) that were commenced (but not completed) by the Full Bench before the abolition day. (2) Heard or partly heard proceedings Pending proceedings that were heard, or partly heard, by a Full Bench of the Commission in Court Session before the abolition day may continue to be dealt with and determined by a Full Bench of the Commission in Court Session. (3) The provisions of this Act and any other legislation or law that would have applied to or in respect of proceedings referred to in subclause (2) had the amending Act not been enacted continue to apply to those proceedings. (4) Unheard proceedings The following provisions apply in respect of pending proceedings that had not commenced to be heard before the abolition day: (a) if the function of determining proceedings of the kind concerned becomes the function of the Supreme Court or the Court of Criminal Appeal on that day because of amendments made by the amending Act - the proceedings are taken, on and from that day, to have been commenced in the Supreme Court or the Court of Criminal Appeal (as the case requires) and may be heard and determined accordingly, (b) if the function of determining proceedings of the kind concerned becomes the function of the Commission other than in Court Session on that day because of amendments made by the amending Act - the proceedings are taken, on and from that day, to have been commenced in the Commission and may be heard and determined accordingly, (c) if the function of determining proceedings of the kind concerned becomes the function of the Commission in Court Session (constituted by a single judicial member) on that day because of amendments made by the amending Act - the proceedings are taken, on and from that day, to have been commenced in the Commission in Court Session and may be heard and determined by a single judicial member accordingly. (5) The provisions of this Act and any other legislation (as amended by the amending Act) apply to and in respect of proceedings referred to in subclause (4). (6) Definitions In this clause: 'abolition day' means the day on which Schedule 1 [6] to the amending Act commences. 'amending Act' means the Industrial Relations Amendment (Industrial Court) Act 2013."

Submissions

1. Each of the parties submits that, on the proper application of the statutes, this Court is required to hear and determine the appeal. Essentially, the parties submit that each appeal is a pending proceeding because it was "before a Full Bench of the Commission in Court Session" at the hearing in February 2013 (i.e. before the abolition day) in relation to the extension of time issue. Further, the parties submit that as at the abolition day the "appeal proceedings" were part heard as a consequence of the 13 February 2013 hearing and the judgment issued on 17 June 2013.
2. The parties submit that s 190A does not apply because of the effect of s 196 of the Industrial Relations Act.
3. Section 196 does not in its terms provide a right of appeal. Nor does it expressly prescribe the persons who may appeal or the conditions precedent before an appeal is "pending". Section 197A (now repealed) is instructive. That section provided a right of appeal by an inspector against an acquittal by the Industrial Court. The provision was repealed from 1 January 2012 and expressly had effect "despite anything to the contrary in s 196" of the Industrial Relations Act. The expression "despite anything to the contrary in s 196" would be otiose if s 196 of the Act were not a grant of the right of appeal.
4. The repeal of s 197A of the Industrial Relations Act would not alter the construction of provisions of the statute that existed prior to its repeal and continued in existence thereafter. As a consequence, in its context, s 196 of the Industrial Relations Act was intended by the legislature to have the effect of governing the right to appeal and that is the provision governing rights of appeal.

Consideration

1. The principles of statutory construction are well known and do not need repeating at length. A statute is to be construed in a manner that gives effect to the legislative intention evidenced by the words used, the consequences of the construction, the purpose of the statute and the necessity to assume that the legislature intended to give effect to harmonious goals: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] and [70].
2. The legislative purpose of giving effect to a transition from appeals of this kind being heard and determined by the Industrial Court to being heard and determined by the Court of Criminal Appeal ought not to have an impact upon the manner in which the provisions that operated prior to the abolition day are construed. Nor should the repeal of s 197A of the Industrial Relations Act have an impact upon the construction of the other provisions of that statute.
3. Appeals from a conviction under the Occupational Health and Safety Act are the subject of authoritative determination by the Court of Appeal in Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7, in which Basten JA, with whom Mason P agreed and with whom, on this question, Spigelman CJ agreed, said:
4. "[69] Section 196, in its terms, appears to assume the existence of an appeal or reference, rather than to confer a right to appeal or seek a reference; however, it should be understood as having the dual purpose of conferring a right of appeal or power to seek a reference and, secondly, to regulate the circumstances in which such rights and powers are to be exercised."
5. As a consequence, bearing in mind the comments earlier made as to the expression in the repealed s 197A of the Industrial Relations Act, the right of a person to appeal and the conditions on such an appeal are, in accordance with s 196 of the Industrial Relations Act, to be determined by an analysis and construction of the provisions of the Criminal Appeal Act, with the necessary changes being made. We turn then to the construction of those provisions.
6. Section 196 of the Industrial Relations Act attracts the provisions of the Criminal Appeal Act that govern appeals from the Supreme Court exercising its summary jurisdiction. Appeals from a single member of the Industrial Court are now to be governed by the terms of s 5AA of the Criminal Appeal Act. As a consequence, s 188 of the Industrial Relations Act does not apply and leave to appeal is not necessary (except in the case of an appeal against a costs order). Further, the provisions of s 190A of the Industrial Relations Act do not apply.
7. The parties submit that the consequence of the foregoing is that the interlocutory hearings culminating in orders of the Court on 17 June 2013 and on 11 November 2013 were, ex post facto, part of the jurisdiction required to be exercised by a Full Bench and the transitional provisions operated to render "the appeal" part heard or to be "pending proceedings". This needs examining.
8. The manner in which the Court of Criminal Appeal deals with a matter before it is governed by the Criminal Appeal Act. The parties rely upon the provisions of s 10 of the Criminal Appeal Act and, in particular, the provision of s 10(1)(b), which provides that the "court may, at any time, extend the time within which the notice [of intention to appeal] is required to be given to the court or, if the rules [allow it] dispense with the requirement".
9. The parties submit that the reference to "the court" in s 10 is a reference to the Court of Criminal Appeal. In the broad sense that submission is undeniable, but the parties then proceed, by reference to the definition of "court" in s 2 and the provisions of s 3 of the Criminal Appeal Act, to submit that the reference to "the court" is a reference to a Full Bench.
10. The difficulty with such a submission is that it construes the provisions out of the context of the remainder of the Criminal Appeal Act. By operation of s 28 of the Criminal Appeal Act, rules have been promulgated, including r 3C, granting to the Registrar of the Court of Criminal Appeal the power to extend time under s 10(1)(b) of the Criminal Appeal Act or the duration of any such notice under rules 3A or 3B of the Criminal Appeal Rules: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [13].
11. The rules promulgated under the Criminal Appeal Act do not, pursuant to the provisions of s 196, apply to appeals to the Full Bench of the Industrial Court. Rather, the rules of the Industrial Commission apply.
12. More fundamentally, however, the provisions of s 22 of the Criminal Appeal Act, and in particular s 22(1)(b) of that Act, grant to a judge sitting alone the powers of the Court of Criminal Appeal to extend the time within which a notice of intention to appeal is to be given or any time within which the appeal is to be made and other interlocutory orders. Indeed, the powers granted to a single judge under s 22 of the Criminal Appeal Act are more extensive than the powers granted under s 190A of the Industrial Relations Act to a single judge. For example, under the Criminal Appeal Act a single judge has the power to grant leave to appeal and the power to dismiss an appeal as incompetent.
13. As a consequence, the regime applying to an application for the extension of time is a regime that is not necessarily one to be dealt with by a Full Court and is a jurisdiction that may be exercised by a single judge or a registrar of the Court. Even if the analysis of the application of ss 196 and 190A of the Industrial Relations Act was wrong, an extension of time would still be a matter that may be dealt with by a single judge of the Court.
14. For similar reasons, the interlocutory ruling of the Full Bench on the summons for the production of documents in Hunter Quarries (No 2) is in the same position. By operation of s 22(1)(e) of the Criminal Appeal Act, a single judge may constitute the Court of Criminal Appeal in order to exercise the jurisdiction or power under s 12(1) of the Criminal Appeal Act to order the production of documents.
15. That conclusion does not, however, determine the issue of jurisdiction with which these reasons are concerned.
16. The parties seem to have treated "pending proceedings" as a reference to the appeal. The difficulty with such a course is that the appeal is not "before a Full Bench" until the appeal in substance has been listed before a Full Bench.
17. Clause 58(1) of the transitional provisions utilises the indefinite article in referring to proceedings "before a Full Bench", but utilises the definite article when referring to the condition that the proceedings were required to have been commenced but not completed by "the Full Bench". However, in clause 58(2) the indefinite article is utilised each time there is a reference to a Full Bench of the Industrial Court.
18. The parties refer to the term "unheard", which is a term that is exclusively used in the heading to clause 58(4). The term "unheard" is a collective term for proceedings that are not proceedings that have either been commenced and completed, or commenced and not completed, by a Full Bench before the abolition day.
19. Whether the extension of time heard and determined by the first Full Bench was required to be heard by a Full Bench is, at least in some respects, a distraction. The extension of time, whether heard by a Full Bench or by a judge sitting alone, is an exercise of appellate jurisdiction: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424. If every appeal is a "pending proceeding", the remainder of the transitional provision in clause 58 would be of little or no utility.
20. Assuming, as the parties submit, that every appeal that has been listed, for any purpose, before a Full Bench is a "pending proceeding" (a far more arguable proposition), then every appeal would be a "pending proceeding" as soon as any matter relating to the appeal, including any interlocutory order, was listed before a Full Bench. Such a construction extends what would ordinarily be taken as the meaning of the term "part-heard". Fundamentally, the issue turns on the meaning of the term "proceedings" in the context of clause 58 of the transitional provisions.
21. The term "proceedings" generally may be ambiguous. It may mean an action or cause of action in totality or it may mean a step in the proceedings. "The ordinary or natural meaning or meanings of the word 'proceedings' standing by itself, without any adjectival description, are so general and imprecise that the dictionary definitions do not carry the matter any further": Quazi v Quazi [1979] 3 All ER 424 at 429 per Ormrod J.
22. The term has been taken to mean the totality of a cause of action, but, nowadays, is more commonly used in a less technical sense. In the context of the English rules of court, the United Kingdom Court of Appeal said: "The wording of [the rules of court] confirms me in the view that 'proceedings' means the day-to-day steps in the action, since that provides that proceedings can cure themselves of irregularity by delay, in the sense that the other party cannot rely on an irregularity unless making complaint within reasonable time": Smalley v Robey & Company Ltd [1962] 1 Q.B. 577.
23. In other words, the United Kingdom Court of Appeal held, in that context, that a proceeding was the step in an action, rather than the action (or, in that case, the writ) itself. Earlier cases are to different effect, but in a different context: see Pryor v City Officers Company (1883) 10 Q.B.D 504 in the context of the Judicature Act 1873.
24. In Australia, the High Court has had occasion to look at the term "proceeding" in the context of the Service and Execution of Process Act 1992 (Cth), during which Isaacs and Gavan Duffy JJ said: "A 'proceeding' used broadly, as it is used in s 16 of the Federal Service and Execution of Process Act, is merely some method permitted by law for moving a Court or judicial officer to some authorised act, or some act of the Court or judicial officer": Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 at 536, 537.
25. See also Krextile Holdings Pty Ltd v Widdows; Re Bruch Fabrics Proprietary Limited [1974] VR 689 at 693, per Gillard J.
26. The tension created by a construction that treats any mention or hearing before a Full Bench as "pending proceedings" for the entire appeal is overcome by a construction of the term "proceedings" as any step heard or determined by a Full Bench.
27. Utilised in that way, the term "proceeding" and the consequential term "pending proceeding" would refer to any interlocutory step listed before a Full Bench. Thus, in the present circumstances, it would mean that an application for an extension of time for leave to appeal or an application to issue a summons for production of documents would be itself a proceeding, which, if heard or part-heard on 20 December 2013, could be continued and finalised. But further motions or applications before any subsequent Full Bench would be required to be heard by the Court of Criminal Appeal.
28. The parties rely upon the judgment of the Court of Appeal in Sparke v Hay [2014] NSWCA 318. In the proceedings with which the Court of Appeal was required to deal, the Full Bench of the Industrial Court heard and determined an application for leave to appeal, during which the issue arose as to whether there was a right of appeal at all. The Industrial Court embarked in that proceeding upon the process of determining whether there was a competent appeal. In the course of its consideration, the Court of Appeal (Leeming JA, with whom Macfarlan JA and Tobias AJA agreed) held at [27]-[28]: "[27] Every Australian court has jurisdiction to determine whether it has the jurisdiction which a claimant has purportedly invoked: Khatri v Price [1999] FCA 1289; 95 FCR 287 at [15]; Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1999] FCA 1572; 94 FCR 384 at [18]. Moreover, the first duty of a court is to determine whether it has jurisdiction: see Zhang v Zemin [2010] NSWCA 255; 79 NSWLR 513 at [39]-[46]; Eberstaller v Poulos [2014] NSWCA 211 at [1] and [14]. [28] Accordingly, the Commission had both authority, and an obligation, to decide whether the purported invocation of appellate jurisdiction by Mr Sparke and Beoox was valid. Plainly, it was to that issue that the hearing conducted on 27 September 2013, and the submissions supplied subsequently, were directed. Contrary to what was said in Sparke v State Training Service [2014] NSWIRComm 3 at [13], this was not 'the mere giving of directions'; what occurred on 27 September 2013 was the hearing of an essential aspect of the exercise of the Commission's jurisdiction. Indeed, save for one matter, it would be clear that the first pending proceeding was one which was 'heard, or partly heard, by a Full Bench of the Commission in Court Session' within the meaning of cl 58(2), with the result that the deeming in cl 58(4) would not apply."
29. Apart from the fact that this Court is bound by the judgment of the Court of Appeal, the judgment, with respect, is plainly correct. Nevertheless, the circumstances in this case are significantly different. The present case does not involve any Full Bench dealing with any aspect of the substantive appeal. Rather, each Full Bench and, in particular, the first Full Bench, dealt with a discrete hearing.
30. In the absence of the grant of leave to appeal out of time, there would be no appeal proceedings. That which was heard by the first Full Bench was a motion for the extension of time for the filing of an appeal and a motion for the issue of summonses. Before the orders issued by the first Full Bench, there was no appeal. The hearings before the first Full Bench were proceedings (being a step in the application or appeal) that had been commenced and were "completed". The appeal, fixed for hearing before this Court, as presently constituted, had neither been commenced nor become part-heard or completed before the abolition day.
31. One aspect that requires consideration is the construction of clause 58(4) of Sch 4 of the Industrial Relations Act (see above) as a factor in the foregoing analysis. First, proceedings are pending once commenced by appropriate application (including summons or motion).
32. Secondly, the Schedule contemplates that an appeal could be commenced in the Industrial Court, yet heard (after the abolition day) by the Court of Criminal Appeal or the Supreme Court in relation to civil matters.
33. Thirdly, the proceedings are taken, on and from the abolition day, to have been commenced, relevantly, in the Court of Criminal Appeal and are to be heard and determined on that basis. Thus, an appeal lodged in the Industrial Court before the abolition day for which no hearing had occurred or for which interlocutory hearings had been conducted before a single judge would, if the substantive proceedings were to commence after the abolition day, be heard by the Court of Criminal Appeal.
34. Therefore, the provisions of clause 58(4) of the Schedule are not inconsistent with the construction of the term "proceedings". The term "proceedings", as construed herein, is the only construction that provides an harmonious and consistent outcome for the legislative scheme. There is a consistency where the Court with jurisdiction hears the substantive appeal, regardless of the composition of the Industrial Court that determined any discrete interlocutory proceeding.
35. Even if the foregoing were the wrong approach and the "proceedings" were the whole appeal rather than a step in the appeal, until the grant of the extension of time there had been no proceedings in the appeal before a Full Bench and the result is the same.
36. Thus while every step previously taken by a Full Bench of this Court is valid as it was commenced and completed before the abolition day, the existence of those proceedings, which dealt with no substantive aspect of the appeal, does not thereby provide this Court with the jurisdiction to hear and determine the substantive appeal.
37. To the extent that the parties rely upon the "proceedings" based on the application for disqualification from which the judgment in Hunter Quarries Pty Ltd v Morrison (No 3) arose, the proceedings, if "part heard" before the abolition day, are to be analysed in the same manner as Hunter Quarries (No 2). However, there are two additional issues. First, an application for disqualification is to one or more judicial officers, not the Court. Secondly, the application for disqualification, the hearing and the issue of the judgment and reasons for judgment each occurred after the abolition day and could not, as a matter of fact, bring these proceedings, independently, within jurisdiction.
38. Further, the foregoing construction takes strength from the terms of the governing statutes. Whether an interlocutory step is to be heard by a single judge or a Full Bench is a matter (prior to 20 December 2013 and in the relevant aspects after that date) wholly within the discretion of the President (or Chief Justice). To construe the transitional provisions in a manner that depended on whether some interlocutory step was assigned to a Full Bench, as distinct from a single judge, as governing jurisdiction to hear a substantive appeal does not seem to accord with a construction of the statutes to achieve harmonious goals or the intention of the legislature.
39. The Court as presently constituted does not have jurisdiction to hear and determine the matters. The appeals must be heard by the Court of Criminal Appeal.
40. We accept that this is a most inconvenient result. These appeals are arguably the last in this situation. Nevertheless, neither convenience nor the consent of the parties is relevant to the existence of jurisdiction. This inconvenience may, in some respects, be ameliorated by the course accepted by the parties during the hearing, namely that in the event we found we lacked jurisdiction after hearing the appeal, the evidence and submissions in these proceedings may constitute the evidence and submissions in the Court of Criminal Appeal save for any matters further requiring attention in those further proceedings.

orders

1. As a consequence of the foregoing, the Court makes the following orders and declarations: 1. The interlocutory steps taken thus far are binding and effective; 2. The Industrial Court does not have jurisdiction to hear and determine the substantive appeals; 3. These appeals are hereby referred to the Chief Justice for allocation to the Court of Criminal Appeal comprised in accordance with the Criminal Appeal Act 1912.

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: 08 April 2016