Industrial Registrar v Matters

Criminal Procedure Act 1986 Industrial Relations Act 1996 ss 151A, 153, 164, 168, 180, 398, 399 LEGISLATION CITED: Industrial Relations Commission Rules 1996 Parts 3 and 11, r 226, 232, 237 Occupational Health and Safety Act 1983 Supreme Court Act 1970 Supreme Court Rules 1970 Part 55 r 11

Capaan v Joss (No2) (NSWCA, 6 June 1994, unreported) Crewdson v Director General, NSW Department of Ageing Disability and Home Care - Department of Community Services (No 2) [2006] NSWIRComm 336 Emibarb Pty Limited t/as The Lagoon Seafood Restaurant v Paul Raymond Matters [2005] NSWIRComm 312 European Asian Bank AG v Wentworth and Ors (1986) 5 NSWLR 445 Johnston v Nationwide News Pty Ltd [2005] NSWCA 17 CASES CITED: Killen v Lane [1983] 1 NSWLR 171 Maddocks v Brown [2002] NSWSC 111 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 R v Cooling [1990] 1 Qd R 376; (1989) 44 A Crim R 171 United Telecasters Sydney Limited v Hardy (1991) 23 NSWLR 323 Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission of New South Wales in Court Session and Another (2004) 60 NSWLR 602 WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited and others (2002) 112 IR 332

APPLICANT: Mr L Babb of counsel Mr D Norris, Solicitor LEGAL REPRESENTATIVES: Crown Solicitor's Office

RESPONDENT: Mr P Matters - self represented

Application for orders pursuant to s 180 of the Industrial Relations Act 1996 in relation to Matter No IRC 1551 of 1998

1 These proceedings were commenced by notice of motion filed on 31 May 2007 when the Industrial Registrar sought declarations that Paul Raymond Matters, the respondent, had been guilty of contempt of the Industrial Relations Commission of New South Wales, in the terms set out in an application for orders filed that day. 2 The proceedings were brought pursuant to the provisions of s 180 of the Industrial Relations Act 1996. In accordance with s 153(2) of the Act, the proceedings were required to be dealt with by the Full Bench of the Industrial Court. On 23 July 2007 we ordered that the proceedings be dismissed. 3 These are the reasons for making that order. Mr Lloyd Babb, the Crown Advocate, appeared in the proceedings for the applicant. Mr Babb submitted at the outset of his submissions that the application had been commenced out of time and should be dismissed. The respondent, Mr Paul Raymond Matters, appeared himself and agreed with the Crown Advocate's submission. The Crown Advocate in support of his submission provided to the Court detailed written contentions with which, in general terms, we find ourselves in agreement. Because of that circumstance, and because of the carefully framed and learned nature of those contentions, these reasons are substantially based upon them. We express our gratitude to Mr Babb, and those instructing him, for their assistance. Background 4 The order directing the Industrial Registrar to commence these proceedings was made by Schmidt J on 2 September 2005: Emibarb Pty Limited t/as The Lagoon Seafood Restaurant v Paul Raymond Matters [2005] NSWIRComm 312. The relevant allegations of contempt were brought by Emibarb Pty Limited ("Emibarb") by way of notice of motion filed in the Industrial Court of New South Wales on 16 February 2005. Her Honour set out the background to the proceedings before her as follows: [3] Emibarb Pty Limited t/as The Lagoon Seafood Restaurant ('Emibarb'), was a respondent to proceedings brought by Ms Narda Tapia under s 213 of the Industrial Relations Act 1996 ('the Act'). The application was dismissed by Glynn J on 22 October 2003 in Narda Tapia v Lagoon Seafood Restaurant [2003] NSWIRComm 341. The question of costs was not dealt with by her Honour. In a judgment of 25 June 2004, the joinder of Mr Matters as a party to the proceedings was ordered, for the purpose of the costs orders which Emibarb there sought. (See Narda Tapia v Emibarb Pty Limited t/as The Lagoon Seafood Restaurant [2004] NSWIRComm 186). The costs application was dealt with by Backman J, who declined to make any costs orders (see Tapia v Emibarb Pty Limited t/as Lagoon Seafood Restaurant [2005] NSWIRComm 232).

[4] In these proceedings it is alleged that Mr Matters gave sworn evidence which was false and lied to the Commission under oath. This was alleged to have been revealed in subsequent proceedings before the Registrar, with the result that there was a fruitless and expensive waste of time for Emibarb, inconsistent with the proper administration of justice. Emibarb's case was that this conduct comprised a contempt of the Commission, which was drawn to the Court's attention, so that it could be dealt with. 5 After considering the evidence, submissions and principles applicable to an application for an order directing the Industrial Registrar to commence proceedings for contempt of the Commission, her Honour concluded: [31] I am unable to come to the view that the circumstances revealed are not serious. Nor is it possible to conclude that some innocent explanation for all that transpired has thus far been forthcoming. I am also unable to see that the allegations have been drawn to the Court's attention for frivolous or vexatious reasons. [32] The material brought forward by the parties provides a sufficient basis for the allegations of contempt to be considered. I am satisfied, on that material, that the allegations which have come before the Court are such that it is appropriate that they be dealt with pursuant to Rule 237(1) of the Court's Rules. 6 In view of the reasons that led to the dismissal of these proceedings, it is unnecessary to traverse in any detail the evidence to which her Honour was referring, except to observe that relevant evidence was given in proceedings before the Commission (Schmidt J) on 9 June 2004 and that answers given by the respondent in the course of his evidence on that day form the basis of charges 1, 2 and 3 in the Registrar's notice of motion. The conduct in respect of these charges was said to have been complete on 9 June 2004. 7 Charge 4 in the Industrial Registrar's notice of motion relates to an alleged breach of undertaking by the respondent. In the course of giving evidence on 9 June 2004, the respondent gave an undertaking to the Commission in relation to the name and address of his accountant, in these terms: Q. Would you be prepared to undertake to provide the name and address of that firm within seven days to me?

Q. So you provide an undertaking to provide that information to the Court and to myself within seven days?

8 It is alleged that the respondent did not provide the name and address of the firm preparing his income tax returns within the seven days nominated. It appears that neither the Commission nor Emibarb was informed of the name of that firm until 24 June 2004, when the respondent, in proceedings before the Assistant Deputy Industrial Registrar, identified his accountant as Mr Perri and informed her that he would provide the address "soon". The Assistant Deputy Industrial Registrar noted the respondent's undertaking to provide Mr Perri's address to Emibarb by 4.00 pm on 28 June 2004. 9 While it is not clear when or if the respondent complied with that second undertaking (although he had provided the street name and suburb in the course of his evidence on 9 June 2004), it appears that Emibarb made its own enquiries and had the address later on 24 June 2004, when a summons to Mr Perri for production was issued by the Commission. The applicant observed that any breach of the undertaking after that date was technical and had arguably been waived by Emibarb. The applicant submits that any contempt by the respondent by way of breach of this undertaking should be regarded as complete as at 24 June 2004. 10 Charge 5 in the Industrial Registrar's notice of motion relates to the alleged misleading of the Deputy Industrial Registrar by the respondent on 1 July 2004. This conduct was referred to in her Honour's reasons at [11], [24], [29] and [30]. This charge refers to the respondent's appearance before the Deputy Industrial Registrar on 1 July 2004 when he objected to a summons for production and the following exchange occurred: Deputy Registrar: In terms of the summons before me which is issued to Robert (Perri) … Mr (Perri) is what, your accountant or something?

Deputy Registrar: How does what you've said impinge on this?

Matters: There is no relevance, there's no fact at issue which could be possibly relevant in terms of my tax returns to costs application. 11 The conduct was alleged to be contempt by misleading the Deputy Industrial Registrar, in that it amounted to the respondent suggesting that Mr Perri in fact held documents the subject of the summons for production when the respondent knew that Mr Perri held no such documents. The applicant submits that, on one view, the alleged act of misleading the Commission was complete on 1 July 2004, but that it may be arguable that the misleading continued until the respondent's evidence was given on 8 July 2004 in which he stated that his accountant held no documents. At least by 8 July 2004 the alleged contempt was complete. The applicant therefore submits that all of the alleged contempts the subject of charges in the Industrial Registrar's notice of motion were complete by 8 July 2004. 12 Emibarb filed a notice of motion on 16 February 2005 seeking an order under r 237 of the Industrial Relations Commission Rules 1996. Her Honour heard the application on 8 June 2005 and required written submissions to be filed by 3 August 2005. Her Honour made an order under r 237 on 2 September 2005. 13 Relevantly, the Industrial Relations Act provides: 151A Name of Commission in Court Session to be the Industrial Court of New South Wales The name of the Commission in Court Session is to be the Industrial Court of New South Wales, and a reference in this Act (or any other Act, statutory instrument or document) to the Commission in Court Session (whether enacted or made before or after the commencement of this section) is taken to include a reference to the Industrial Court of New South Wales.

153 Jurisdiction of Commission in Court Session (1) ... (2) ... (3) Subject to subsection (4), the functions of the Commission relating to proceedings for contempt of the Commission may be exercised only by a Full Bench of the Commission in Court Session. (4) The functions of the Commission relating to the commencement of proceedings for contempt of the Commission may also be exercised by a judicial member.

164 Powers of Commission as to the production of evidence, perjury and contempt (1) The Commission may exercise the functions of the Supreme Court in relation to: (a) compelling the attendance of witnesses and examining them on oath or affirmation, or by use of a statutory declaration, and (b) compelling the production, discovery and inspection of records and other documents, and (c) compelling witnesses to answer questions which the Commission considers to be relevant in any proceeding before it, and (d) directing that a witness be prosecuted for perjury. (2) The Commission in Court Session may exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission (including disobedience of any order made by or process issuing out of the Commission). (3) Without limiting subsection (2), a judicial member may exercise the functions of the Supreme Court in relation to the commencement of proceedings for contempt of the Commission. Note. Section 153 (4) provides that the functions of the Commission relating to the commencement of proceedings for contempt of the Commission may also be exercised by a judicial member. 14 Section 168 deals with the procedures to be adopted in proceedings before the Industrial Court for an offence:

168 Criminal procedure (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session. (3) Nothing in subsection (2) affects the operation of section 170. (4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. 15 Section 180 provides:

180 Contempt of Commission - offence (1) A person in contempt of the Commission is guilty of an offence. Maximum penalty: 500 penalty units in the case of a corporation or, in any other case, 50 penalty units or imprisonment for 6 months, or both. (2) For the purposes of subsection (1), conduct is a contempt only if the same conduct in relation to the Supreme Court would be a contempt of the Supreme Court. (3) Proceedings for an offence against this section may be taken only before the Commission in Court Session. 16 Sections 398 and 399 provide: 398 Time for instituting proceedings Proceedings for an offence against this Act or the regulations may be commenced not later than 12 months after the offence was alleged to have been committed.

399 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) by the Minister or by a person with the written consent of the Minister, or (b) by an inspector, or (c) by a person, or a person of a class, prescribed by the regulations. (2) In any such proceedings, a consent to institute the proceedings, purporting to have been signed by a person authorised to give a consent under this section is evidence of that consent without proof of the signature or authority of the person. (3) Any such proceedings instituted by an officer of a Government Department may be prosecuted on his or her behalf by any officer of that Department. (4) This section does not limit any function that may be exercised by the Commission under section 164 (2) with respect to any contempt of the Commission. 17 Part 29 of the Industrial Relations Commission Rules 1996 deals with contempt of the Commission and includes the following rules: 226 Application This Part (Rule 237 excepted) applies only to proceedings before the Commission in Court Session. ...

232 Procedure generally (1) Where contempt is committed in connection with proceedings in the Commission, an application for punishment for the contempt must be made by notice of motion. (2) Where contempt is committed, but not in connection with proceedings in the Commission, proceedings for punishment of the contempt must be commenced by application. (3) Proceedings for contempt which have not been commenced in the appropriate manner may nevertheless be continued unless the Commission otherwise orders. ... 237 Motion or proceedings by the Registrar (1) Where it is alleged, or appears to the Commission on its own view, that a person is guilty of contempt of the Commission, the Commission may, by order, direct the Registrar to apply by motion for, or to commence proceedings for, punishment of the contempt. (2) Subrule (1) does not affect such right as any person other than the Registrar may have to commence proceedings for punishment of contempt. Consideration 18 The issue that initially arose for determination in these proceedings was whether the prosecution for contempt had become statute barred as at 8 July 2005, being almost two months prior to the time her Honour's order was made and entered on 2 September 2005. 19 The contempt provisions of the Industrial Relations Act and the Industrial Relations Commission Rules are, for the most part, modelled upon the corresponding provisions in the Supreme Court Act 1970 and, particularly, Pt 55 of the Supreme Court Rules 1970. The Supreme Court Rules essentially set out the procedural requirements for invoking the Supreme Court's inherent jurisdiction to deal with contempt of court. The substantive law governing such proceedings is the common law of contempt. Since it is a creature of the common law, other than as procedurally regulated by the Supreme Court Act and Supreme Court Rules, no time limit applies to a prosecution for contempt in the Supreme Court. Even if the Criminal Procedure Act 1986, which deals with proceedings for summary offences in Ch 4, Pt 5 applies to prosecutions for contempt in the Supreme Court, that Act does not impose any time limit for such prosecutions. 20 The Industrial Relations Act departs from the Supreme Court model by providing in s 180(1) that "a person in contempt of the Commission is guilty of an offence", for which maximum penalties are provided. The common law principles as to contempt are imported by s 180(2), which provides that, for the purposes of s 180(1) "conduct is a contempt only if the same conduct in relation to the Supreme Court would be contempt of the Supreme Court." Section 180(3) provides that proceedings for an offence against this section may be taken only before the Industrial Court. 21 Contempt of Court is a body of law developed in relation to the exercise of judicial power. It is applicable, at common law, only to courts: United Telecasters Sydney Limited v Hardy (1991) 23 NSWLR 323. It may be inferred that s 180(1) was enacted to ensure that the Commission attracted the protection of the law of contempt whether it was constituted as the Industrial Relations Commission or as the Industrial Court (the latter previously known as the Commission in Court Session). 22 In Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission of New South Wales in Court Session and Another (2004) 60 NSWLR 602, Mason P, with whom Spigelman CJ and Handley JA agreed, described s 180(1) as "a commonplace statutory offence", given "some definition" by s 180(2) and that s 180(3) was also "a commonplace conferral of jurisdiction in relation to proceedings for the offence". 23 Pursuant to s 168(2) of the Industrial Relations Act, Pt 5 of Ch 4 of the Criminal Procedure Act applies to proceedings for an offence taken before the Industrial Court. However, as noted above, nothing in that part restricts the time within which such proceedings may be brought. Section 398 of the Industrial Relations Act provides a 12 month time limit in respect of "proceedings for an offence against this Act or the regulations". 24 Although it may be that the limitation in s 398 was not intended, in a subjective sense, to apply to the offence of contempt of the Commission under the Industrial Relations Act, we conclude that as a matter of statutory construction, it in fact does so. This conclusion is supported by the fact that the relevant provision, s 399 of the Industrial Relations Act, which deals with the authority required to commence a prosecution for an offence, expressly provides that the section "does not limit any function that may be exercised by the Commission under s 164(2) with respect to any contempt of the Commission" and there is no such reservation expressed in the adjacent provision of s 398. 25 The nature of contempt of the Commission as a statutory offence, and the effect of s 399 of the Industrial Relations Act, were considered by the Full Bench of the Industrial Court in Crewdson v Director General, NSW Department of Ageing Disability and Home Care - Department of Community Services (No 2) [2006] NSWIRComm 336. In that case, the Full Bench considered proceedings brought by the applicant by motion charging various alleged contempts arising from proceedings in the Commission in which he had been involved. The respondents contended that the applicant did not have standing to commence the proceedings, in view of s 399 of the Industrial Relations Act, and that they had been commenced out of time. The applicant contended, in effect, that s 164(2) of the Industrial Relations Act provided a separate power to deal with contempt. Section 164(2) of the Industrial Relations Act provides: The Commission in Court Session [now the Industrial Court] may exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission (including disobedience of any order made by or process issuing out of the Commission). 26 After referring to the Court of Appeal's analysis of the power of the Industrial Court to deal with contempt in Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission in Court Session (supra), the Full Bench held: [25] It follows that under the Act, the statutory offence of contempt created by s 180 is 'the critical provision' and that the 'critical jurisdictional questions relate to s 180'. Section 164(2) does not confer a separate jurisdiction upon the Court to deal with contempt, but 'confers ancillary powers, that among other things make s 180 effective'.

And, then, after examining s 399 of the Industrial Relations Act , held: [28] We are satisfied that s 399 deals expressly with the question of who has standing to commence proceedings for an offence against the Act. There are no relevant regulations to consider. Mr Crewdson is plainly not one of the persons specified in s 399(1). 27 The Full Bench noted that the applicant had nevertheless argued that he had the right to bring contempt proceedings at common law, given his standing as a party to the proceedings to which the contempt related, and that s 399(4) of the Industrial Relations Act preserved his right to do so. Mr Crewdson submitted that the scheme of the Industrial Relations Act was to confer upon the Industrial Court the same powers as those of the Supreme Court in relation to the conduct in question, and he relied upon the approach of the Court of Appeal in European Asian Bank AG v Wentworth and Ors (1986) 5 NSWLR 445 in support of the construction for which he contended. 28 As to Mr Crewdson's contention, the Full Bench held that: [29] Were this a common law court, Mr Crewdson would undoubtedly have standing to bring contempt proceedings, given that he was a party to the proceedings in which the alleged contempts occurred. (See R v Dunbabin ; Ex parte Williams (1935) 53 CLR 434). Subsection 399(4) makes clear, however, that its purpose is to confirm, by reference to s 164(2), that the Court has power to 'exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission (including disobedience of any order made by or process issuing out of the Commission)'. Subsection 399(4) does not create a wider class of persons who may initiate a prosecution in relation to the offence of contempt, than those earlier specified in s 399(1). Had that been the intent of the subsection, it would have said so expressly, by making reference, for example, to such proceedings being able to be commenced by parties to the litigation in which the alleged contempt occurred.

[30] Subsections 399(4) and 164(2) of the Act are concerned to ensure that the creation of the statutory offence of contempt and the provision made in the Act for the initiation of such offence proceedings by the persons identified in s 399(1), does not limit the Court's power itself to act in relation to a contempt. The Act also seeks to ensure that, as a superior court of record, the Court is adequately armed with the powers necessary to deal with any contempt which arises before it or the Commission. This was achieved by the various references made to the Supreme Court and the exercise of its functions in relation to contempt. 29 The Full Bench did not accept the applicant's submission that, having regard to the decision in European Asian Bank, and the relevant Industrial Relations Commission Rules, the regime for dealing with contempt of the Commission was identical with that of the Supreme Court, so that he had standing to bring proceedings. The Full Bench noted changes made to the Supreme Court Rules since European Asian Bank, and observed: [41] The differences in the two statutory schemes explains, no doubt, the Court of Appeal's acceptance in Uniting Church of Australia Property Trust (NSW) , that's 164(2) was seen as conferring ancillary powers that, among other things, make s 180(3) effective'. Section 164 provides that the Court 'may exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission (including disobedience of any order made by or process issuing out of the Commission)'. Those functions must be exercised, however, in the context of the statutory offence which s 180 of the Act creates. It follows that the way in which contempt is dealt with under the two legislative schemes is not identical. Each Act must be given effect.

[42] The Act also does not itself deal with the various ways in which a contempt may be committed, as does the Supreme Court Act . Reference to ss 48 and 53 of the Supreme Court Act , shows, however that such contempt may extend to: (a) contempt in the face of, or in the hearing of, the Court or

(b) disobedience of a judgment or order of the Court, or

(c) breach of an undertaking given to the Court [43] So understood, it becomes clear why provision has been expressly made in the Act for the commencement of contempt proceedings to be dealt with by a single judge and why reference has been made to this Court exercising the functions of the Supreme Court in relation to contempt.

[44] There are significant similarities between the provisions made in this Court's Rules as to contempt and those now made in the Supreme Court Rules in Part 55. That is understandable, given the references made to the functions of the Supreme Court being exercised by this Court in ss 153 and 164; those who are given standing under s 399 to commence proceedings for an offence under s 180 and the Court's power itself to commence such proceedings.

[45] The Supreme Court Rules are however, made under the Supreme Court Act . That legislation does not create an offence such as that created by s 180 of the Act, nor does it deal with the question of standing to initiate such offence proceedings, as s 399 of the Act provides. It follows that the Court of Appeal's conclusion in Uniting Church of Australia Property Trust (NSW) that 'the critical provision remains s 180, which establishes the offence and ostensibly confers on the Commission in Court Session jurisdiction to determine whether guilt is established', may not be overlooked, when the question of who has standing to bring such proceedings is considered. As Kirby P observed in European Asian Bank AG , the answer to this Court's jurisdiction must be found in the Act and this Court's Rules.

[46] The approach urged upon the Court by Mr Crewdson does not adequately address the offence created by s 180 of the Act. The provision made in s 399, specifies that the only persons who may institute proceedings for an offence under the Act, are those named in ss (1). We are satisfied that while s 399(1) makes clear the limited class of persons who may institute proceedings for an offence under the Act, it does not limit the Court's power itself to deal with 'the apprehension, detention and punishment of persons guilty of contempt', as s 164 provides. Subsection 399(4) cannot be construed as also having the effect of preserving the common law in relation to the initiation of contempt proceedings in this Court.

30 The Full Bench held as to the scope of r 237 of the Industrial Relations Commission Rules: [50] This illustrates the role which Rule 237 of the Court's Rules has in this statutory scheme. The reference made in subrule 237(2) to subrule (1) not affecting 'such right as any person other than the Registrar may have to commence proceedings for punishment of contempt', is a reference to those persons who are given standing to bring such proceedings by ss 399(1). The Rule cannot, however, be construed to expand upon the express provision made in the Act, as to who may bring contempt proceedings, so as to give Mr Crewdson a standing which he is not given by s 399.

[51] The legislature has seen fit to depart from the approach adopted at common law for the commencement of contempt proceedings by private litigants. The legislature requires that contempt proceedings be dealt with by a Full Bench of this Court, other than as to their commencement. It has specified the penalties which the Court might impose, if the statutory offence is found proven. These, too, are departures from the common law. 31 In light of the Full Bench's conclusion that the applicant did not have standing to commence proceedings for contempt, it was unnecessary for it to consider the question of whether the proceedings were commenced within time. It was concluded in Crewdson that contempt of the Commission must be treated as an offence under the Industrial Relations Act. The Court held that "s 164(2) does not confer a separate jurisdiction upon the Court to deal with contempt, but 'confers ancillary powers, that among other things, make s 180 effective' " and that the Court's "functions must be exercised ... in the context of the statutory offence which s 180 of the Act creates". 32 In Crewdson the Industrial Court noted that "ss 399(4) and 164(2) of the Act are concerned to ensure that the creation of the statutory offence of contempt and the provision made in the Act for the initiation of such offence proceedings by the persons identified in s 399(1), does not limit the Court's power itself to act in relation to a contempt". It is significant that s 398 does not have a qualification corresponding to s 399(4), which would have had the effect of preserving the right of the Commission to direct a prosecution for contempt notwithstanding the expiry of the limitation period. The fact that such a qualification has been expressed in s 399 tells strongly against any implied qualification in s 398 that it does not limit the power of a single judicial member to direct a prosecution outside the limitation period.

33 In our view, it follows that the time limit provided in s 398 of the Industrial Relations Act, must apply to an offence of contempt under s 180. The Full Bench in Crewdson observed that it was a further example where "the legislature has seen fit to depart from the approach adopted at common law for the commencement of contempt proceedings ...". 34 The Industrial Relations Commission Rules provide that where a "contempt is committed in connection with proceedings in the Commission, an application for punishment for the contempt must be made by notice of motion": r 232(1). However, "where contempt is committed, but not in connection with proceedings in the Commission, proceedings for punishment of the contempt must be commenced by application": r 232(2). By r 232(3) "proceedings for contempt which have not been commenced in the appropriate manner may nevertheless be continued unless the Commission otherwise orders". Rule 237 reflects the two methods of prosecuting alleged contempts provided for in r 232. 35 In the light of the provisions of rr 232 and 237, it might be argued that the strictly literal construction of s 398 limits the time within which separate proceedings for contempt may be commenced by application, but does not limit a prosecution by way of notice of motion in existing proceedings since this would not involve what in r 237 is termed a direction to "commence proceedings for punishment of contempt". However, such a construction would give the reference to "commence proceedings" in r 237 a narrow and artificial operation. In our view, the words are used to distinguish a prosecution by way of separate proceedings from a prosecution by way of motion in existing proceedings. In the latter case proceedings "for an offence" are nevertheless effectively "commenced" by the filing of a notice of motion since the substantive Commission proceedings would not themselves have been proceedings for an offence. Too fine a point should not be made of the differential provisions in r 232. They do no more than re-state the usual procedural distinction mode in many rules of court between the commencement of new proceedings and the making of interlocutory or similar applications by motion in proceedings already on foot. The same distinction is to be found in the general procedural provisions applicable to the Commission and the Court in Parts 3 (Initiation of Proceedings) and 11 (Motions) of the Rules. 36 In any event, as s 398 of the Industrial Relations Act is a beneficial provision, it should not be narrowly construed so as to provide a time limit for prosecutions commenced by application but not prosecutions commenced by way of notice of motion. While it may be arguable that the differential treatment may be justified by the possible need to postpone a prosecution for contempt where the conduct has occurred in connection with proceedings (so that the substantive issues may first be heard to completion), but not in other cases, such an argument is not sufficiently persuasive to justify what would appear to be a strained and artificial construction of s 398. 37 Moreover, under s 153(3) of the Industrial Relations Act "the functions of the Commission relating to proceedings for contempt of the Commission may be exercised only by a Full Bench of the Commission in Court Session". Section 153(3) is expressed to be subject to s 153(4), the terms of which have been earlier set out. Section 164(3) is in the same terms as s 153(4). 38 The language of s 153(4) supports the construction that any proceedings brought pursuant to a direction under r 237 of the Industrial Relations Commission Rules will constitute the commencement of "proceedings for an offence" for the purposes of s 398. If this were not correct, it would appear to follow that a prosecution for contempt by way of notice of motion does not constitute the "commencement of proceedings for contempt" for the purposes of s 153(4). In turn, this would deprive a single judicial member of the power to direct a prosecution by way of notice of motion. 39 It would appear that the only way in which the direction can be given effect, and yet avoid the conclusion that a prosecution would be time barred by s 398, is to give a broad construction to the expression "commencement of proceedings" in s 153(4), so that it includes any form of direction under r 237, but to construe s 398 narrowly in order to distinguish commencement of proceedings from an application by motion in existing proceedings. Such a differential construction is, we think, strained and most unlikely. 40 We conclude that the reference to the commencement of "proceedings for an offence" in s 398 should be taken to comprehend a proceeding for the punishment of contempt, including a proceeding pursuant to a direction under r 237 of the Industrial Relations Commission Rules, whether commenced by way of notice of motion or by way of an application to initiate separate proceedings. 41 As we have already observed, the latest date that the alleged contempts were complete, was 8 July 2004. Proceedings for offences arising from the alleged contempts may have been commenced within the time provided by s 398 if the notice of motion filed by Emibarb on 16 February 2005 could be regarded as having commenced those offences. 42 However, in our opinion, the reference to the commencement of proceedings for an offence in s 398 is a reference to the substantive prosecution proceedings which are judicial in nature. The requirements of s 398 would not be satisfied by the commencement, within the limitation period, of "proceedings" seeking a direction under r 237. Any action taken, by notice of motion or otherwise, to seek a direction under r 237 would clearly be distinct from prosecution proceedings and, if properly categorised as "proceedings" at all, would be administrative or ministerial, and not judicial, in nature. In Killen v Lane [1983] 1 NSWLR 171 Moffitt P, with whom Hutley and Samuels JJA agreed, considered that there was no right to make an application to the Supreme Court for a direction under the Supreme Court Rules Pt 55 r 11(1) (which has the same effect as r 237 of the Industrial Relations Commission Rules). His Honour said (at 177): The right of the court to act on the allegation of some person is and formerly was as now provided in r 2 and r 11(1), so that the province of any person is to do no more than inform or allege, so as to leave the commencement of proceedings entirely a matter for the court as a ministerial decision taken of its own motion. The provision in these rules is consistent with the practice which preceded the rules.

43 His Honour held (at 179) that "it was strictly not the province of the appellant to apply even on a ministerial basis for a judge to make the direction order" and that "the so-called application … was really irrelevant". See also Capaan v Joss (No 2) (NSWCA, 6 June 1994, unreported), Maddocks v Brown [2002] NSWSC 111 and Johnston v Nationwide News Pty Ltd [2005] NSWCA 17. 44 In WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited and others (2002) 112 IR 332, the Full Bench reviewed the nature of time limitation provisions for the prosecution of criminal offences such as those under the Occupational Health and Safety Act 1983 and those under s 398 of the Industrial Relations Act, and observed: [90] There appears to be some difference of approach as to the accurate way to characterise limitation provisions in criminal proceedings. One view is that limitation provisions operate as a plea in bar to prosecution: see, for example, R v Tait (1995) 80 A Crim R 374 at 377; R v Cooling [1990] 1 Qd R 376 at 378; (1989) 44 A Crim R 171 at 173. The other view is that a limitation provision operates as a defence: Pearce v BHP Steel (AWI) Pty Ltd (1998) 8 Tas R 337 at 339; 85 IR 305 at 306 and Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 at 553.

[91] The critical point for present purposes, however, is that made in R v Cooling ([1990] 1 Qd R at 378), where Thomas J said, with the concurrence of Ambrose J: Commencement of the prosecution within the prescribed time limit is not an element of the offence, and there is no requirement that the indictment show compliance with such requirement on the face of the indictment.

In their further submissions, the defendants did not, in terms, respond to these authorities or provide any basis to challenge or distinguish the conclusion and approach in R v Cooling . [92] We consider that the approach in R v Cooling is correct and should be applied. The first proposition in the sentence extracted from the judgment of Thomas J is self-evidently correct; the contrary is not arguable as a matter of legal principle, as a matter of simple definition or in terms of the ordinary use of the phrases "[the provision] under which the application is made" and "the nature of the ... offence which is alleged" as they appear respectively in pars (d) and (e) of r 219(1). The balance of his Honour's statement is consistent with general principle: for example, the inappropriateness of pleading in avoidance of an anticipated or assumed defence (including a defence relying on a limitation period): Ritchie's Supreme Court Practice New South Wales at paragraph [15.7.3], p 2360; Young , O'Leary and Hogan , Supreme Court Civil Procedure New South Wales , 2nd ed, 1987, p 164 and Cairns, Australian Civil Procedure , 4th ed, 1996, pp 268-269. It is also consistent with principles developed outside the criminal jurisdiction: see, for example, the judgment of the Court of Appeal in Minister for Youth & Community Services v Health & Research Employees' Association of Australia (NSW Branch) ([1987] 10 NSWLR at 550 per Kirby P), and those of the High Court in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 375, 385, 388-389, 391; (2002) 112 IR 332 at 357; Adams v Chas S Watson Pty Ltd (at 553, 559) and Commonwealth v Verwayen (1990) 170 CLR 395 at 405, 425, 456, 473, 486-487, 497-498 which refer to the longstanding principle that limitation provisions do not affect the jurisdiction of a court but rather provide a defence or plea in bar.

45 The Full Bench in that case was concerned with whether there was any requirement for the initiating process to identify the basis upon which the proceedings, which were on their face out of time, came within an exception to the general two-year time limit provision in the Occupational Health and Safety Act. It found that since, as noted, this did not constitute an element of the offence, it did need not be set out in the initiating process. 46 The Full Bench referred, in the above passage, to the High Court's decision in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369. In that case the Court found that the commencement of proceedings within any applicable limitation period was not a matter that went to a court's jurisdiction. Rather it was one of the matters within the court's jurisdiction to decide, subject to any available means of appeal or review. Latham CJ observed, at 375: Upon principle, one would think that such provisions were directions to the court which it was bound to observe, but only with the consequence that, if the court failed to observe them, its decision would be set aside as wrong in appropriate proceedings by way of appeal or review, if the law made provision for such proceedings. …

47 In R v Cooling [1990] 1 Qd R 376; (1989) 44 A Crim R 171 (which was followed and applied by the Full Bench in Lucon) Thomas J, with whom Ambrose J concurred, said: Once it comes to the notice of the court that the prosecution is out of time it would be wrong for it to allow the prosecution to continue, even if defence counsel refused to rely on it …

… The role of the trial judge in a criminal case to see that the trial is conducted according to law is different in kind to that in civil practice where the court generally responds to the issues the parties choose to place before it. It happens not infrequently in a criminal court that a judge is required to put a defence to a jury even though it is disclaimed by defence counsel.

In that case a conviction for a statute barred offence was quashed even though the accused had been convicted after having offered to plead to it in satisfaction of other charges. 48 It follows that the present proceedings, commenced at her Honour's direction are within the Industrial Court's jurisdiction to consider, even if commenced outside the limitation period under s 398. However, they are proceedings to which the respondent has available a plea in bar or defence which the Court is obliged to give effect to once it comes to the Court's attention. 49 In these circumstances, it is clear that any prosecution for contempt became statute barred by 8 July 2005, at the latest. The charges of contempt contained in the notice of motion filed in these proceedings were therefore statute barred by the time her Honour's order was made and entered on 2 September 2005. This issue was not brought to her Honour's attention prior to the order being made on 2 September 2005. The notice of motion had therefore to be dismissed. 50 In coming to this conclusion, it is appropriate that we draw the attention of the relevant authorities to our concern about the difference in this important area, on the one hand, between the provisions of the Supreme Court Act and the Supreme Court Rules and, on the other, those of the Industrial Relations Act and the Industrial Relations Commission Rules. The situation is unsatisfactory. The legislation should obviously be revisited by Parliament in order to ensure that there is consistency in the law, particularly in circumstances surrounding allegations of contempt of court, and the provisions in this jurisdiction should be brought into line with those applying in the Supreme Court. 51 The Industrial Registrar is accordingly directed to provide a copy of these reasons to the Attorney General and to the Minister for Industrial Relations drawing attention to the earlier observations.

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