Nash v Glennies Creek Coal Management Pty Ltd

Relevant legislation 6Section 196 of the Industrial Relations Act 1996 ("IR Act") provides: 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. 7Section 5AE of the Criminal Appeal Act 1912 (CA Act") is in the following terms: 5AE Point of law stated during summary proceedings (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.

Prosecutor joins with Department 8At the outset of the hearing of the Department's application to refer the questions of law, Mr Agius SC, for the prosecutor, indicated that his client joined in the reference. This has some significance because the defendants contended that the Department was not the Crown for the purpose of s 5AE of the CA Act, and even if the Court found there were questions of law (which the defendants denied), it was not mandatory for the Court to refer the questions. There appeared to be no real debate that the prosecutor was to be regarded as the Crown for the purposes of s 5AE: see Ove Arup Pty Ltd v Industrial Court of NSW (2006] NSWCA 28; (2006) 149 IR 193 at [71] per Basten JA, Spigelman CJ and Mason P agreeing. Whilst Ove Arup was concerned with s 5C of the CA Act, there is no basis upon which to conclude the reference to the Crown in s 5AE is to be interpreted differently to the reference in s 5C. 9Despite the low profile the prosecutor adopted in the debate in Nash (No 2), the prosecutor has a real interest in the present issue before the Court. As the prosecutor is to be regarded as the Crown, if I am satisfied the questions posed are questions of law, I must submit the questions to the Full Bench of the Court.

Defendants' issues 10The defendants put forward five issues to be considered in the present application: (a) Is the Department, the Crown for the purposes of s.5AE of the CA Act? (b) If the answer to (a) is yes, are the questions which have been formulated by the Department questions of law? (c) In the event that the Court determines that the questions are questions of law for the purposes of s.5AE of the CA Act, should the Court exercise its discretion to refer the questions? (d) Does the Court have the power to stay the orders made on 13 August 2013? (e) Should the Department pay the costs of the Defendants on an indemnity basis in relation to the Notice of Motion filed on 15 August 2013, the Notice of Motion served on 16 August 2013 and the present application for a stated case? 11I shall answer those questions to the extent necessary.

Is the Department the Crown? 12In the light of my decision that the prosecutor is the Crown for the purposes of s 5AE and has a real interest in the proceedings, it is unnecessary to determine whether the Department is also the Crown, although for the reasons submitted by Mr Moses SC, for the defendants, I think not.

Are the questions formulated, questions of law? 13Before answering this question it is important to understand that in Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107; (2004) 137 IR 8 it was held there is no statutory power under the IR Act that allows for a right of appeal (whether by leave or otherwise) from an interlocutory decision in a criminal matter. The Court held an appeal under s 5F of CA Act (and s 196 of the IR Act) does not lie to the Full Bench of the Court from an interlocutory judgment made in its summary jurisdiction. There was no issue that Nash (No 2) was an interlocutory decision. 14Under s 5AE, of course, a party may request the judge to refer a question of law arising at or in reference to the proceedings to the Full Bench of the Court for determination. However, the judge should not permit s 5AE to be used as a means to appeal an interlocutory judgment in circumstances where the legislature has not provided a mechanism for such appeals: see for example R v Madden (1995) 85 A Crim R 367 at 370 and R v Porter (2004) 141 A Crim R 593 at 599 per Spigelman CJ, Barr and Kirby JJ agreeing. This would, as the defendants submitted, circumvent the operation of the IR Act and the CA Act in relation to criminal proceedings. 15In Madden, the appellant had appealed to the District Court from a conviction in the Local Court upon a charge of "goods in custody". The judge held that he was satisfied beyond reasonable doubt that the prosecution case had been made out, and that he had not been satisfied by the appellant on the balance of probabilities that the defence had been made out. The question posed by the stated case was whether the judge's finding that the offence had been proved was erroneous in law. Section 5B, which was the subject of proceedings in Madden, and s 5AE are relevantly identical in content, although dealing with stated cases arising in different situations, as the Court of Criminal Appeal observed in Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439; (2004) 137 LGERA 289 at [27]. 16In Madden, Hunt CJ at CL relevantly stated at 370: The question which is posed for this Court's determination is whether the judge's finding that the offence had been proved was erroneous in law. That is not an appropriate question to be asked in a Stated Case. The procedure provided by s 5B of the Criminal Appeal Act 1912 is intended to permit the District Court judge to obtain advice from this Court upon questions of law which will assist that judge in determining the fate of the appeal to that Court pursuant to s122 of the Justices Act (Re Van De Lubbe (1949) 49 SR 309 at 312). The procedure is not intended to provide a means of challenging the ultimate determination made (or to be made) by the judge upon that appeal to the District Court, as there is no right of appeal to this Court from that determination. The question asked here is in form no more that an attempt to exercise such a right of appeal. It is for that reason that this Court has said, and often repeated, that it is necessary that the particular question or questions of law upon which advice is to be obtained are specifically stated (see, for example, Re Van De Lubbe (at 312); Law Society v Goodwin [1972] 2 NSWLR 462 at 464). 17In Re Van De Lubbe (1949) 49 SR (NSW) 309, Jordan CJ stated at 312: [T]he particular matter or matters of law as to which it is desired to have determined questions whether the Chairman's decisions thereon were erroneous should be specifically stated. It is not proper to ask whether, as a matter of law, the Chairman, on the facts found by him, was entitled to find the appellant guilty of the offence charged, leaving the Court of Criminal Appeal to grope through the case stated and try to discover for itself what are the specific questions of law involved. 18I should add that the Full Bench does not have the power on a reference under s 5AE to determine questions of fact: R v Rigby [1956] HCA 38; (1956) 100 CLR 146 and Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128; (2007) 165 IR 7 at [151] per Basten JA. Accordingly, it would be pointless and, in any event, "not proper" to refer questions of fact to the Full Bench where it does not have power to determine such questions. Nor would it be proper to refer a mixed question of law and fact because that is not a question of law: The Queen v Gill (Supreme Court of Queensland, Court of Criminal Appeal (unreported), 20 November 1986), cited by Spigelman CJ in Attorney General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653 at [44]. 19In Nash (No 2) I decided that the Department's claim of public interest immunity should be disallowed. In doing so, and in undertaking the relevant balancing exercise, I decided the documents in respect of which public interest immunity was claimed and which are identified in the orders made: (a)were not controversial and their disclosure would not inhibit free and vigorous discourse within Cabinet; (b)had nothing to do with the formulation of State policy at a high level such as to warrant non-disclosure; (c) were forensically relevant; and (d)were of such a nature I should follow the precedent of North Australian Aboriginal Legal Aid Service Inc v Bradley [2001] FCA 1080. 20In respect of the claim for client legal privilege I found that: (a)Ms Nash had implied authority to waive privilege; (b)the 12 July Letter revealed the gist of the legal advice, which Ms Nash proceeded to implement; (c)Ms Nash was not compelled by virtue of s 137 of the Criminal Procedure Act 1986 to provide the information in the 12 July Letter to the defence and, therefore, s 122(5)(iii) of the Evidence Act did not apply; (d)there had been an implied waiver of client legal privilege; and (e)the prosecutor asserted she undertook certain action in reliance on what I consider was legal advice. Accordingly, her state of mind was put in issue in respect of critical issues in the proceedings, with the consequence that an inconsistency arose between the making of the assertion and the maintenance of the privilege. The result is that client legal privilege was waived. 21The questions of law that the Department and the prosecutor propose that I refer to the Full Bench of the Court are in the most general terms. That was conceded. Nevertheless, the Department submitted they were questions of law and that I must refer them. It was submitted that it would be a matter for the Full Bench, if it considered it necessary, to require "greater specificity to explain precisely how it is said that [I] fell into error". 22I think, with respect, this loses sight of the purpose of s 5AE. In the present context, it is intended to permit a single judge of the Court to obtain advice from the Full Bench of the Court upon questions of law that will assist that judge in determining how the matter should be finally disposed of. The questions whether I erred in law in disallowing the claim of public interest immunity and in holding that client legal privilege was waived seem to be no different in principle to asking whether "the judge's finding that the offence had been proved was erroneous in law": see Madden. The questions essentially seek to invite the Full Bench to overturn my findings, not raise a question of law to assist in my determination of the issues. 23The questions do not identify with any degree of specificity the issue upon which the Full Bench's advice might assist me. There has been no "distillation by the trial judge of the issues of law that emerged for decision...": Collins v State Rail Authority NSW (1986) 5 NSWLR 209 at 211 per Street CJ. There was no identification of any legal test in relation to public interest immunity or in relation to waiver of client legal privilege in respect of which I may have erred or any other question of law other than blanket questions more suitable to be asked in an appeal. The manner in which the questions are framed would require the Full Bench "to grope through the case stated and try to discover for itself what are the specific questions of law involved." 24Moreover, the questions, given their general nature, are not directed exclusively to questions of law. Given my findings, questions of fact and mixed questions of fact and law would inevitably arise, including, as the defendants pointed out, the central issue of the balancing exercise I undertook with respect to the claim of public interest immunity, an exercise that does not involve a question of law: Attorney General for the State of New South Wales v X at [25]-[55]. 25A further deficiency in the proposed stated case relates to the facts. The Department states in its proposed reference: (ix) On 13 August 2013 I gave interlocutory judgment in respect of the Notices of Motion (a copy of my judgment is annexed hereto and marked with the letter "C"). In my reasons for judgment, I referred to facts and made factual findings and determinations, which may be treated as facts for the purposes of this stated case. 26In Talay v R [2010] NSWCCA 308 the Court of Criminal Appeal addressed the requirements for a stated case under s 5B(2) of the CA Act. Simpson J (with whom Schmidt J and Howie AJ agreed) stated: [15] A guide to "the proper drafting of a case stated" is to be found as a Practice Note in (1991) 65 ALJ at 418-419, drawing on the decision of the Appeal Division of the Supreme Court of Victoria in Industrial Equity Ltd v Cmr for Corporate Affairs [1990] VR 780. The author of the Practice Note (Mr J G Starke QC, then General Editor of the Australian Law Journal) extracted from the judgment the following (adding the italics): The principles regulating the stating and determination of a case stated should not be in doubt, for they have been several times set out emphatically by courts of high authority, although every judge knows how difficult it is to comply with all the requirements. But what is absolutely essential, and should be reasonably practicable in every case, is that the case stated must contain at least a statement of all the ultimate facts which in the opinion of the judge [in the court below] dictated his ultimate conclusion... The case must state all the ultimate facts, including those found by inference, but not the evidence upon which the ultimate facts were founded. It may be possible, though in the absence of argument on the point we would gravely doubt it, to use the procedure by way of case stated... to raise the question whether the evidentiary facts are such that they justify in law the findings of ultimate fact made... The court in Industrial Equity also quoted from the decision City of Hawthorn v Victorian Welfare Association [1970] VR 205, the following: Such a special case should state the findings of fact made by the County Court Judge at the hearing of the... appeal, and not the evidence given before him, nor the conclusions of law at which he arrived... The case here stated contravenes each of these requirements. The Practice Note in 65 ALJ went on to refer to the decision of the High Court in R v Rigby [1956] HCA 38 ; 100 CLR 146, and stated the following "important principle" (also quoted in Industrial Equity): Upon a case stated the court cannot determine questions of fact and it cannot draw inferences of fact from what is stated in the case. Its authority is limited to ascertaining from the contents of the case stated what are the ultimate facts, and not the evidentiary facts, from which the legal consequences ensue that govern the determination of the rights of parties. (italics added) See also Zukerman v Law Society of New South Wales (1986) 5 NSWLR 292 at 294 ... [22] It will be observed that there is no statement of facts. The facts are purportedly put before this court by appending the judgment. That contains, in addition to certain facts found, references to submissions and arguments advanced by the parties, to aspects of the evidence, and to historical or procedural matters in the Local Court hearing. Often, where evidence is referred to, the judgment does not explicitly say whether that evidence has been accepted. Axiomatically, the judgment does not state what facts have been found by inference, although such facts may be of importance for the answers given to the questions submitted. 27The proposed reference in the present proceedings suffers from the same flaws as that identified in Talay and, although I note in that case the Court decided it was appropriate to attempt to deal with the case stated within the constraints of its deficiencies (see [25]), I could not presume the Full Bench of the Industrial Court would take a similar approach. 28The Department referred to Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd in particular at [6] where the Court referred to the form of questions referred under s 5AE. Relevantly the questions were in the following terms: "(a) Did I err in law in finding that [GWS] had established a defence of authority of licence pursuant to s122 Protection of the Environment Operations Act 1997? (b) Did I err in law in finding that [GWS] had established the defence of honest and reasonable mistake of fact?" 29The Court in Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd rejected the defendant's contentions that the questions submitted were: (i) not questions of law, but of fact; and (ii) lacked sufficient specificity or were general inquiries. 30Notwithstanding the approach to the questions in Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd it does not change my view about the deficiencies in the Department's questions. A question about whether a judge erred in law in finding that the defence of honest and reasonable mistake of fact had been established is qualitatively different to whether the judge erred in law in disallowing a claim of public interest immunity and in holding that client legal privilege was waived. The same with a question about whether the judge erred in finding the defendant had established a defence of authority of licence pursuant to s122 Protection of the Environment Operations Act. 31The proposed questions in these proceedings are, as it was conceded, of a wide-ranging character. They do not raise one legal issue, such as whether there a judge erred in law in finding that the defence of honest and reasonable mistake of fact or about whether the judge misapplied a single statutory provision, but potentially raise a number of legal issues. For example, in relation to client legal privilege, did the judge err by failing to apply s 137 of the Criminal Procedure Act, and/or did the judge err by applying wrong legal principles in respect of issue waiver, and/or did the judge err in wrongly applying the legal principles in respect of disclosure waiver, or in respect of public interest immunity, did the judge err in misinterpreting (specified) authority. In this respect, I think the questions posed lack specificity. 32In failing to be specific it is also not apparent whether the questions as posed are isolated to purely questions of law. For example, as I earlier pointed out, my findings include findings of fact and findings involving mixed fact and law, such as whether Ms Nash had implied authority, whether the substance of the evidence had been disclosed, whether the confidential exhibits the subject of the public interest immunity claim were controversial and whether those exhibits constituted policy matters. Moreover, central to my findings regarding public interest immunity is the balancing exercise undertaken to assess the public interest on whether disclosure would prejudice the proper functioning of the government. That exercise is not a question of law but a question of fact. It is not permissible under the guise of prefatory statements such as, "Did his Honour err in law..." to refer to the Full Bench questions of fact, or mixed fact and law, for determination.

Utility 33The defendants submitted that, in any event, even if I were to find the questions were properly framed as questions of law there was no utility in referring them because I had made orders and the Full Bench had no power under s 5AE to amend or vary those orders. 34I do not think this is correct. The law is reasonably clear that the Court has power to vary or set aside its own interlocutory orders in appropriate circumstances, notwithstanding such orders may have been entered, but provided those orders have not decided rights of parties: see r 36.16(3) of the Uniform Civil Procedure Rules 2005; Wilkshire & Coffey v The Commonwealth (1976) 9 ALR 325 at 330 and Douglas v John Fairfax and Sons Ltd [1983] 3 NSWLR 126 at 134. 35In Amalgamated Television Services v Marsden [1999] NSWCA 313 the Court of Appeal referred at [38] with approval to the decision of McLelland J in Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46, where his Honour stated: In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application. 36If the Full Bench were to find that I had committed error that would be a material change in circumstances providing the basis for the orders I had made to be set aside or varied.

Power to grant a stay 37The defendants submitted I should dissolve the stay made on 16 August 2013 with immediate effect because there was no power to grant a stay in the circumstances of this case: see Nurses and Midwives Association v Justice Health and Forensic Mental Health Network (a Division of NSW Health) [2012] NSWIRComm 148 and Chevalley v Inspector Morrison [2012] NSWIRComm 10 at [18]. 38In Chevalley the Court was concerned with an application to stay interlocutory proceedings pending the hearing of an application for declaratory relief to be heard by a Full Bench. As the Court in Chevalley noted, the proceedings were criminal proceedings involving an application to a single judge for a stay of proceedings before another single judge pending a hearing before a Full Bench for declaratory relief. The Court found it did not have power to order the stay of the proceedings pending the determination of the applicants' claim for declaratory relief. The Court referred to what Samuels JA (with whom Reynolds and Glass JJA agreed) stated in Barton v Walker [1979] 2 NSWLR 740 at 756: It is necessary only to point out that no judge of this Court, or of any other court, is bound by the orders or decisions of a colleague of equal jurisdiction and status. 39The Court in Chevalley was faced with quite different circumstances to those that prevail in the present proceedings. The question here is whether the Court has power to stay interlocutory orders pending questions of law being determined by a Full Bench. 40In Brimaud, McLelland J observed at 46: Interlocutory orders, of their very nature, create no res judicata or estoppel, and the Court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings... The overriding principle governing the approach of the Court to interlocutory applications is that the Court should do whatever the interests of justice require in the particular circumstances of the case.... 41In my opinion, if the Court has an implied power to set aside, vary or discharge an interlocutory order it has made, it must follow it has power to stay or suspend the order pending the outcome of a stated case. 42It may be accepted that whilst the Industrial Court is a superior court of record it does not have unlimited implied powers. However, I do not think it could be doubted that, incidental to its power to make orders, including interlocutory orders, is the power to set aside, vary, discharge or suspend its own interlocutory orders subject to principles or rules of practice that have been developed in that respect by superior courts: see also Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164-5. 43I find I have power to stay the interlocutory orders made on 13 August 2013.

Costs 44The defendants seek their costs on an indemnity basis in relation to the Notice of Motion which was filed on 15 August 2013 (by letter to the Chambers of the President) and the Notice of Motion which was served on and sent to the Chambers of the President on16 August 2013 in relation to the stay applications which were not successful. The defendants also seek their costs of the present application to refer questions. 45In light of the orders I intend to make in this matter I propose to reserve the question of costs.

Orders 46The Court makes the following orders: (1)I decline to refer the questions to the Full Bench of the Court as formulated by the Department and filed on 20 August 2013. (2)The judgment and orders made by the Court on 13 August 2013 are stayed until 12 noon on 29 August 2013. (3)Liberty to apply. (4)Costs are reserved.

Attachment 1 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: 27 August 2013