Ove Arup and Ors v Inspector Mansell

CORAM: Wright J President; Walton J Vice-President; Boland J

Courts and judges - Practice and procedure - Occupational health and safety - Notice of motion - Application to re-open appeal proceedings and vacate orders - Whether judgment and orders have been perfected - Whether Commission in Court Session has power to re-open proceedings where judgment and orders have been perfected - Whether Commission in Court Session is an intermediate court of appeal or court of last resort - Implications of s 179 of Industrial Relations Act 1996 for whether Commission in Court Session is court of last resort - Whether exceptional circumstances or irremediable injustice exists warranting re-opening of appeal proceedings - Discretionary considerations against re-opening - Notices of motion dismissed - Costs CATCHWORDS: Practice and procedure - Courts and judges - Occupational health and safety - Notice of motion - Application to re-open appeal proceedings and vacate orders - Whether judgment and orders have been perfected - Whether Commission in Court Session has power to re-open proceedings where judgment and orders have been perfected - Whether Commission in Court Session is an intermediate court of appeal or court of last resort - Implications of s 179 of Industrial Relations Act 1996 for whether Commission in Court Session is court of last resort - Whether exceptional circumstances or irremediable injustice exists warranting re-opening of appeal proceedings - Discretionary considerations against re-opening - Notices of motion dismissed - Costs

Criminal Appeal Act 1912 s 5C s 5F s 5AE Industrial Relations Act 1996 s 152 s 154 s 168 s 179 s 187 s 196 LEGISLATION CITED: Occupational Health and Safety Act 1983 s 49 Supreme Court Act 1970 Supreme Court (Summary Jurisdiction) Act 1967 s 4

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Bailey v Marinoff (1971) 125 CLR 529 Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 Director of Public Prosecutions v His Honour Judge G D Lewis and Anor [1997] 1 VR 391 DJL v The Central Authority (2000) 201 CLR 226 Gamser v The Nominal Defendant (1977) 136 CLR 145 Gregory John King v Cake It Away Pty Ltd [2004] NSWIRComm 377 Grierson v The King (1938) 60 CLR 431 Mitchforce Pty Ltd v Starkey (No 2) (2003) 130 IR 378 Mitchforce Pty Ltd v Industrial Relations Commission and Ors (2003) 57 NSWLR 212, 124 IR 79 Mitchforce Pty Ltd v Starkey (2002) 117 IR 122 CASES CITED: Morrison v Joy Manufacturing Co [2004] NSWIRComm 107 Nutshack Franchise Pty Limited & Ors v Smith & Anor (1999) 90 IR 355 R v Hickman, Ex parte Fox and Clinton (1945) 70 CLR 598 R v Reardon [2004] NSWCCA 197 Rajunder Narain Rae v Bijai Govind Sing (1839) 2 Moo Ind App 181, 18 ER 269 Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 Vasile Nan v Andreas Van den Berg & Ors [2004] NSWIRComm 361 WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs, Ove Arup Consult & ors [2003] NSWIRComm 452 WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd (2002) 116 IR 128 WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority and Ors (2001) 108 IR 121

APPLICANTS Mr S Rushton SC with Mr J Sheller of counsel Solicitor: Mr P O'Brien Phillips Fox LEGAL REPRESENTATIVES:

RESPONDENT Mr J Agius SC with Mr P Skinner of counsel Solicitor: Mr N A Correy Moray & Agnew

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Wright, President Walton, Vice-President Boland J Monday 28 February 2005

Notice of motion by Ove Arup Pty Limited and Ors to re-open appeal proceedings JUDGMENT OF THE COURT [2005] NSWIRComm 49

1 This matter involves applications to re-open appeal proceedings and for the Full Bench to vacate orders made in those appeal proceedings. The applications are made by Ove Arup Pty Limited, Arup Partner Pty Limited and Ove Arup Consult Pty Limited ("the applicants").

2 On Friday last, 25 February 2005, the Full Bench issued a Statement (which included orders) in the following terms: 1 As was indicated to the parties by the Court's Registry on Wednesday last we have reached our conclusion in this matter although reasons will not be available until early next week. 2 We have decided to dismiss the applicants' notices of motion and order that they pay the respondent's costs of the proceedings. We so order. As advised, reasons for judgment will be provided early next week.

3 The background to the appeal decision which is sought to be set aside may be summarised as follows: Schmidt J in WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority and Ors (2001) 108 IR 121 (a judgment given on 31 May 2001) declined to issue summonses against the defendants in those proceedings pursuant to s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 ("Summary Jurisdiction Act") and dismissed each of the prosecutions. The defendants included the applicants in these proceedings. The prosecutor appealed and in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd (2002) 116 IR 128 the Full Bench upheld the appeal, stating at [89]: 89 The effect of our decision in this matter is that the applications for summonses were not invalid for the reasons contended by the respondents to this appeal. It was not submitted by the respondents that the applications were invalid for any other reason. The proceedings in the matters before us, therefore, were validly commenced. This means that there are valid applications for orders against the four respondents to this appeal still to be dealt with.

4 What is significant for the present proceedings is that the Full Bench in TMG had earlier found in its judgment that the appeal by the prosecutor pursuant to s 5F of the Criminal Appeal Act 1912 was competent and further at [72]: This finding makes it unnecessary to consider definitively the appellant's alternative submissions regarding s 5C of the Criminal Appeal Act and s 187 of the Industrial Relations Act as alternative bases for appeal. We add, however, that, if it had been necessary to deal with the argument based on s 5C of the Criminal Appeal Act, we would have been inclined to the view that s 5C, when read with the modifications necessarily made by s 196 in applying the Criminal Appeal Act to this Court, provides a right of appeal against her Honour's final judgment and, for the reasons given in paragraph [74] below, an appeal would also thereby lie against the initial judgment and orders.

5 The President of the Commission subsequently reallocated the proceedings to Haylen J to consider whether orders should be made in the proceedings pursuant to s 168 of the Industrial Relations Act and s 4(1)(a) of the Summary Jurisdiction Act.

6 Three of the four respondents in TMG, the applicants in the present proceedings, now move the Court for orders that: 1 Leave be granted to the defendant to re-open the appeals in Appeal File No. 4138 of 2001

2 The orders made by the Full Bench of the Commission in Court Session on 27 May 2002 in the said appeals be vacated.

4 The orders made by Schmidt J on 1 May 2001 dismissing prosecutions 5473, 5475 and 5477 of 1999 be affirmed.

5 The prosecutor pay the defendant's costs of the proceedings.

7 The applications were made on the basis that on 28 April 2004 the Full Bench of this Court in Morrison v Joy Manufacturing Co [2004] NSWIRComm 107 held: 1 The Commission in Court Session does not have jurisdiction under the combined operation of s 196 of the Industrial Relations Act 1996 and s 5F of Criminal Appeal Act 1912 to hear and determine an appeal against an interlocutory judgment or order. 2 That an order permanently staying proceedings is not appealable under the combined operation of s 196 of the Industrial Relations Act and s 5C of the Criminal Appeal Act .

8 In relation to the first finding the Court said at [53] and [62]: 53 In so far as s 5F is concerned, given our conclusion that the meaning of the term "indictment" is not extended by the definition in s 2 of the Criminal Appeal Act to include "information" in its most frequently understood sense, "indictment" in s 5F(1)(a) must be taken to refer to the regular criminal jurisdiction of the Supreme Court and not the summary jurisdiction of that Court. It follows that under s 5F an appeal does not lie to the Full Bench of this Court from an interlocutory judgment or order of a judicial member of the Court made in the Court's summary criminal jurisdiction. … 62 It follows from what we have said that we have found it appropriate to reconsider the earlier judgments of this Court in Concrete Constructions Group Limited v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16, Ridge Consolidated Pty Limited v WorkCover Authority of NSW (Inspector Mauger) (2000) 100 IR 156 and WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd (2002) 116 IR 128, principally because this is the first opportunity a Full Bench has had to consider the operation of s 5F with the benefit of comprehensive submissions that included relevant statutory histories. It also follows that the judgments in Concrete Constructions , Ridge and TMG are now to be considered, in the one respect identified in this judgment, to be incorrect. It should be made clear that the authority of those decisions is not otherwise affected. In Ridge the appeal was brought by a defendant whose motion at first instance had been rejected by the trial judge. The defendant may well have been able to challenge the trial judge's decision by means of a reference, by leave, to the Full Bench pursuant to s 5AE of the Criminal Appeal Act .

9 In relation to the second finding the Full Bench stated at [64]-[68]: 64 In TMG , it was argued that the appeal was available under both s 5F and s 5C of the Criminal Appeal Act . Since it was held that s 5F applied, the Full Bench did not consider it was necessary to determine definitively whether an appeal lay under s 5C, although the Full Bench indicated that it was inclined to the view that an appeal did lie (see (2002) 116 IR 128 at [72]). Further, it may have been possible in that case that a reference of questions of law could have been made to the Full Bench pursuant to s 5AE. Whether such reference was available, by leave or as of right, would depend on the identity of the party seeking the reference and whether it was sought "before the completion of [the] proceedings" in terms of s 5AE: See, for example, EPA v Land and Environment Court of NSW [2004] NSWCA 50. 65 We turn to consider whether an appeal is available under s 5C of the Criminal Appeal Act . Under that section, where the Supreme Court quashes any application made under s 4(1) of the Summary Jurisdiction Act , the Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal. 66 There has been no order of the Court "quashing" any application under s 4(1) of the Summary Jurisdiction Act or any charge specified in such an application. The term "quashed" in the context of the first limb of s 5C was referred to in John L at 517 where Mason CJ, Deane and Dawson JJ said: the reference to an information being "quashed" in the first limb of s.5C should be construed as comprehending a decision by a judge of the Supreme or District Court dismissing an information on the ground that the information placed before the relevant court was insufficient properly to invoke the jurisdiction of the court in a case where proceedings are required to be commenced by information.

67 We do not consider that the order of Marks J staying the proceedings could be said to be an order "quashing" the proceedings.

68 We find that the Commission in Court Session does not have jurisdiction under the combined operation of s 196 of the Industrial Relations Act and s 5F of the Criminal Appeal Act to hear and determine this appeal against an interlocutory judgment or order made in proceedings to which s 168 of the Industrial Relations Act applies. Further, for reasons we have given, the judgment and order of Marks J is not susceptible to appeal under the combined operation of s 196 of the Industrial Relations Act and s 5C of the Criminal Appeal Act .

10 The threshold issue in these proceedings is whether the Full Bench has the power to re-open the appeal proceedings. The applicants on the motions contended there was such power. Mr S Rushton SC, with Mr J Sheller of counsel for the applicants, submitted that the effect of s 179 of the Industrial Relations Act was to make the Full Bench a "Court of last resort, just as the High Court is". He submitted the Full Bench was not an intermediate court of appeal.

11 It was submitted for the applicants that the orders made in the appeal in TMG had not been perfected and, therefore, the power remained with the Full Bench to re-open proceedings in order to prevent an "irremediable injustice being done by a Court of the last resort" (Rajunder Narain Rae v Bijai Govind Sing (1839) 11 Moo Ind App. 181 at 220; 18 ER 269 at 284; State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38; R v Reardon [2004] NSWCCA 197 at [25]), namely, to prevent a criminal trial proceeding in circumstances where the only reason the applicants remain before the Court is as a consequence of an order that the Full Bench has since acknowledged was made without jurisdiction. It was submitted that even where orders had been perfected, there was authority to the effect a final appellate court has the power to re-open in exceptional circumstances: Codelfa at 38 per Mason and Wilson JJ.

12 As Hodgson JA observed in the Court of Criminal Appeal Reardon at [20], at least in so far as that Court is concerned, the law appeared to draw a distinction between a Court making an order and its being perfected by formal entry. His Honour observed that distinction was reflected in the Criminal Appeal Rules, especially rr 50A, 51 and 53, which are in the following terms: 50A Determination of appeal or application An appeal or application for leave to appeal is determined on the making of orders disposing of the appeal or application. 51 Notice of determination of appeal etc The Registrar shall send a notice (Forms Nos XI and XII) of the determination of any appeal, or of any application incidental thereto, to the appellant, if he was not present when the matter was determined, to the proper officer of the Court of Trial, to the Director-General of Corrective Services and to the Sheriff, if the appeal is against a conviction involving a sentence of death or is against a sentence of death. 53 Records of Court of Trial to be noted (1) Such proper officer shall thereupon enter the particulars of such notification on the records of the Court of Trial. (2) Such entry shall be made in conformity with the administration of the Court of Trial on: (a) the indictment, (b) the appropriate Court file, or (c) the appropriate computer record.

13 The distinction, in superior courts of record, between the pronouncement and the formal entry of a judgment or order is often an important one. A court has an inherent or implied power at common law to review, correct or alter its judgment or orders before the judgment or order has been entered: Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 265 per Brennan, Dawson, Toohey and Gaudron JJ. See also Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 per Brennan J at 308, per Dawson J at 317, per Gaudron J at 322; Codelfa at 38 per Mason and Wilson JJ. But it is evident that it will be "extremely rare" that a court would re-open a judgment which it has pronounced and that: The public interest in maintaining the finality of litigation necessarily means that the power to re-open to enable a rehearing must be exercised with great caution: Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684.

14 Where a judgment or order has been formally entered or "perfected", the authorities relating to single judges and intermediate courts of appeal are very clear: subject to any contrary statutory provision there is no jurisdiction to re-open. In Grierson v The King (1938) 60 CLR 431 the High Court held that the jurisdiction of the Court of Criminal Appeal of New South Wales was confined within the limits of the Criminal Appeal Act 1912 and that when the Court has heard an appeal on its merits and given its decision the appeal cannot be reopened. Dixon J, with whom McTiernan J agreed, stated at 436-7: Under the Judicature system an action may be brought to set aside a judgment obtained by fraud, but it is an independent proceeding equitable in its origin and nature ( Ronald v. Harper [(1913) V.L.R. 311, at p. 318] per Cussen J.; Halsbury's Laws of England , 2nd ed., vol. 19, p. 266, and the cases there collected, particularly Jonesco v. Beard [(1930) AC 298]. But under that system no court has authority to review its own decision pronounced upon a hearing inter partes after the decision has passed into a judgment formally drawn up ( In re St. Nazaire Co [(1879) 12 Ch D 88]). If the prisoner has abandoned his appeal, the Court of Criminal Appeal in England will exercise a discretion to allow him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal ( Halsbury's Laws of England , 2nd ed., vol. 9, p. 273, and the cases cited in note o ). But in such a case there has been no determination by the court, and there is no English case in which, after such a determination, an appeal has been reopened or a fresh appeal has been entertained.

15 In Bailey v Marinoff (1971) 125 CLR 529 it was held by the High Court (Gibbs J dissenting) that there is no inherent power in a court to deal with an appeal which has already been dismissed by formal order, in conformity with an order pronounced, where the order was entered before an application to vary it was made. Barwick CJ stated at 530-531: Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. In my opinion, none of the decided cases lend support to the view that the Supreme Court in this case had any inherent power or jurisdiction to make the order it did make, its earlier order dismissing the appeal having been perfected by the processes of the Court. I would add that, however hard the case might seem for the would-be appellant the loss of its right of appeal derived from its own conduct or from that of persons for whom it must take responsibility. The finality of the order dismissing the appeal does not seem to me to partake of injustice in the circumstances or to call for any departure from well settled principles, themselves essential in my opinion to the due administration of our system of law (emphasis supplied).

16 Menzies J went somewhat further and stated at 532: Nor do I think a court from which no appeal lies, or continues to lie, has greater inherent power to recall a judgment than has a court from which an appeal, for the time being, does lie. The extent of the inherent jurisdiction of a court to revive proceedings cannot depend upon whether its decisions are appealable or not, or whether or not the appropriate steps to appeal have been taken.

17 In Gamser v The Nominal Defendant (1976) 736 CLR 145 the High Court held that the Supreme Court of New South Wales had no power under the Supreme Court Act 1970, or the Rules of the Court, or by virtue of its inherent jurisdiction, to set aside a judgment by reason of circumstances occurring after a case had been finally disposed of.

18 In Reardon the Court of Criminal Appeal considered it was bound by Grierson. At [40]-[41] Hodgson JA (with whom Simpson and Barr JJ agreed) stated: 40 The authorities make it clear that, if an application to re-open an appeal is made before the judgment dealing with the appeal has been perfected, the Court has jurisdiction to re-open its consideration of the appeal, and that denial of procedural fairness will be a ground on which the Court may take that course. However, the situation is not so clear where the application to re-open is made after the order of the Court has been perfected. Grierson is direct authority to the effect that the Court of Criminal Appeal has no jurisdiction to re-open an appeal once it has heard and determined the appeal and the order has been perfected. Jones suggests that this principle might not apply if a purported determination of an appeal in fact does not amount to a determination of the appeal because there has been a total failure to determine some of the grounds of the appeal. Pantorno and Postiglioni suggests the possibility that there might be jurisdiction to re-open an appeal where procedural fairness has been denied. In the Court of Criminal Appeal, Lapa suggests that there is no jurisdiction to re-open an appeal once the order is perfected, even where there is a denial of procedural fairness; but it could be said that that view is expressed obiter. The contrary view is expressed in Saxon and Gust , but again it could be said that the view is expressed obiter. 41 In my opinion, what was said in Jones , Pantorno and Postiglioni is insufficient to displace the binding authority of Grierson to the effect, once an appeal has been heard and determined and the order perfected, there is no jurisdiction to re-open the appeal. This is subject to the slip rule, and the possibility of separate proceedings to set aside orders obtained by fraud. However, it is to be noted that this principle applies when an appeal has been heard and determined; and leaves open the possibility that if there are grounds of appeal which are not determined at all, it could be said that the appeal has not been determined. That is a possibility adverted to by Sperling J in Saxon ; but in my opinion, it is not any denial of procedural fairness which would have the result that it could be said that an appeal has not been heard and determined. In my opinion, it is only if there is some ground of appeal which was argued but not determined by the Court that one might be able to say that a purported determination does not, in relation to that ground of appeal, amount to a determination of the appeal. Failure to deal with an argument that has been advanced, or deciding an appeal on a basis not properly argued, although possibly amounting to a denial of procedural fairness and thereby to an error of law, could not of itself in my opinion be a failure to determine the appeal such as could avoid the operation of the principle in Grierson . To that extent, I prefer the view expressed in Lapa to the contrary view expressed in Saxon and Gust . We note that none of the exceptions referred to by Hodgson JA apply in the present proceedings.

19 In Codelfa, Mason and Wilson JJ in their joint judgment touched upon the issue of whether a court of last resort, such as the High Court, had the power to vacate orders that had not been perfected. At 38 their Honours stated (emphasis added): Counsel for the Authority referred the Court to many cases to establish the jurisdiction of the Court to entertain the present application. We have no doubt that such a jurisdiction exists: Rajunder Narain Rae v Bijai Govind Sing (1839) II Moo Ind App 181 (18 ER 269). See also Vienkata Narasimha Appa Row v. Court of Wards (1886) 11 App Cas 660; In re Harrison's Share Under a Settlement (1955) Ch 260. Nevertheless, it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. In Rae 's Case, Lord Brougham said, in words which the Authority claims are apposite to the present case (1839) II Moo Ind App, at p 220 (18 ER, at p 284): It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of the last resort, where by some accident, without any blame, the party has not been heard, and an Order has been inadvertently made as if the party had been heard. We note that Codelfa was not a case where judgment had been entered. 20 In DJL v The Central Authority (2000) 201 CLR 226 the High Court (Kirby J contra) dealt with proceedings in the Full Court of the Family Court of Australia. The High Court held that the Full Court of the Family Court did not have power to re-open final orders after their entry. Importantly, it was stated by the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [43]-[44]: [I]n the present litigation, clarity of thought and the isolation of the true issues have not been encouraged by submissions expressed in general terms respecting the position in "intermediate courts of appeal". In the case of each such court, State or federal, attention must be given to the text of the governing statutes and any express or implied powers to be seen therein. Nor is it of assistance to consider the position with respect to this Court in the exercise of its entrenched jurisdiction as a court of final appeal under s 73 of the Constitution, or with respect to the Privy Council or the House of Lords after R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [2001] AC 119 a decision referred to by the Solicitor-General of the Commonwealth. We would add that the statement in De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 at 215 that the power of the High Court to re-open its judgments and orders is not in doubt should not be misconstrued. In that case and in all of the authorities respecting orders of this Court which were referred to in that passage [ Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; Codelfa ; Autodesk ; Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134] the applications were to re-open final orders and were made before entry of the orders in question. There is, as yet, no decision of this Court which turns upon the position after entry of its final orders.

21 Callinan J stated at [189]: The decisions of the majority in Bailey and Gamser confirm that intermediate appellate, and certainly other statutory courts (absent clear provision to the contrary) lack inherent power to re-open perfected orders disposing of proceedings. Those authorities have not been doubted in this Court. The stated exceptions to this general rule are few and rarely found in practice. On the current authorities they are confined (statute apart) to the correction of formal errors and the like, fraud, or failure to give a party a hearing [see footnote 258 to the judgment]. This case is not an occasion for any extension of this narrow, and properly so, category of exceptions.

22 In respect of what has been referred to in a number of the authorities as "intermediate appellate courts", it is, as we have already stated, transparently clear that subject to statutory provisions to the contrary and the stated limited exceptions such as fraud, such courts have no power to re-open perfected judgments or orders disposing of proceedings. Further, in so far as courts of last resort are concerned, the latest authority in that respect is DJL, which makes it clear that there is no decision of the High Court dealing with that Court's power to re-open final orders after they have been perfected.

23 However, the High Court's admonition in DJL makes it plain that in considering whether there is power in a court to re-open an appeal after orders have been perfected, the focus is to be on "the text of the governing statutes and any express or implied powers to be seen therein" and not reliance on general expressions relating to intermediate courts of appeal or on the status of the High Court.

24 That then brings attention back to the Commission in Court Session and raises two questions. First, can it be said that the orders of the Full Bench in TMG have been perfected? If so, and secondly, does the Court have power to re-open the appeal proceedings and vacate the orders made? The answer to the second question involves the consideration of whether the Full Bench of this Court is an "intermediate appellate court" or court of last resort and the consequences of any decision in that regard.

25 As to the first question, there are no counterpart rules in the Industrial Relations Commission Rules 1996 to those in rr 50A, 51 and 53 of the Criminal Appeal Rules. Moreover, there is no practice in the Commission involving the formal entry of judgments or orders in the Industrial Registry. This has not previously given rise to any difficulty.

26 The practice in relation to judgments and orders made by the Commission in Court Session is that a written judgment is prepared that also contains any orders to be made. The orders are normally pronounced on the day of judgment and the parties are immediately provided with a written copy of the judgment and orders. No further steps are taken to formally enter the judgment in records of the Court. In this respect, pronouncement and entry may be said to occur simultaneously, entry having been made in the written judgment and by its delivery in open court. We consider this is the established practice for the purposes of r 89 of the Commission's Rules and, accordingly, the practice, procedure or usage of the Supreme Court, Court of Appeal or Court of Criminal Appeal referred to in r 89(5) of the Commission's Rules in respect of entry of judgments and orders is not applicable.

27 The applicants referred to the Full Bench judgment in Nutshack Franchise Pty Limited & Ors v Smith & Anor (1999) 90 IR 355 at 360 in which the Commission was said to have adopted Pt 40 r 3 of the Supreme Court Rules as to when judgment takes effect because no applicable rule appeared in the Commission's Rules. Nutshack is distinguishable. There the court was dealing with an order for the payment of money and the procedure for its enforcement. As senior counsel for the respondent submitted, "This judgment says nothing about whether there is a practice and usage about the entry of judgments in the IRC, rather it dealt only with what was said to be trite law that the judgment for the payment of money became effective on its making."

28 The evidence in these proceedings included a letter from the Industrial Registrar to the solicitors for the applicants to the effect that the judgment handed down by the Full Bench in TMG on 27 May 2002 containing orders concluded the matter. The Registrar expressed his understanding as being: [T]hat this represents entry of the orders. There is nothing within either the Industrial Relations Act or Rules which would suggest to me that a further step is required before the orders can be considered to be 'perfected'.

29 On 26 June 2002 and arising from the orders made by the Full Bench in TMG, in particular order 3, Haylen J called on the issuing of orders under s 4 of the Summary Jurisdiction Act against the applicants. There was a further mention on 1 August 2002 when directions were issued for written submissions to be filed. On 3 September 2002 Haylen J issued orders under s 4 of the Summary Jurisdiction Act against the applicants. On 14 October 2002 before Haylen J, the applicants reserved their pleas and indicated that further motions were being considered. In WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs, Ove Arup Consult & ors [2003] NSWIRComm 452, the judgment of Haylen J given on 12 December 2003, his Honour considered notices of motion by the applicants and others for a permanent stay of proceedings. The arguments concerned the construction of s 49(4) of the Occupational Health and Safety Act 1983. His Honour dismissed the motions.

30 As matters currently stand, the trial of the charges against the applicants and others is scheduled to commence on 28 February 2005 before Haylen J. It is plain that the orders made by the Full Bench in TMG have been acted upon appropriately and proceedings have taken their course.

31 We consider, in the circumstances, the judgment and orders made by the Full Bench on 27 May 2002 in TMG have been perfected. That leads us to consider the second question raised earlier as to whether the Full Bench has power to re-open the appeal proceedings and vacate the orders made and the related issues.

32 It is clear from the authorities that if this Court were an intermediate appellate court, in the absence of any express conferral of power to do so, no power would exist to re-open a perfected judgment or order. Central to the applicants' contentions, however, was that the Court was not an intermediate appellate court but rather a court of last resort by virtue of s 179 of the Industrial Relations Act.

33 There is no express conferral in the Industrial Relations Act of the power that the applicants seek to be exercised in these proceedings and we do not consider there is any inherent power by reason of the description of the Court as a superior court of record in s 152 of the Act: see DJL at [45] and the High Court's findings regarding the Family Court. The question does arise, however, as to whether the existence of s 179 in the statute, as argued by the appellants, along with other considerations that we shall shortly address, creates an implied power to re-open appeals on the basis that the Court is a court of last resort.

34 Section 179 is in the following terms: 179 Finality of decisions (1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted): (a) is final, and (b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise). (2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted. (3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission.

35 Given the terms of s 179, a Full Bench of the Commission in Court Session might readily be regarded as a court of last resort subject only to a challenge under the Hickman principle laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 especially at 614-615: see Mitchforce v Industrial Relations Commission and Ors (2002) 57 NSWLR 212; 124 IR 79. In other words, judicial review of any decision of a Full Bench of this Court will be ousted if the requirements of the Hickman principle are met. As Gaudron and Gummow JJ stated in Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 at 634: However and provided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it satisfies the Hickman principle.

36 It may be arguable, therefore, this Court is a court of last resort and thus, despite the strength of the statements in Grierson and Bailey v Marinoff to the effect that once an order disposing of a proceeding has been perfected that proceeding (apart from any specific and relevant statutory provision) is at an end in that court and is beyond recall by that court, in order to avoid an "irremediable injustice", circumstances may render it appropriate for a Full Bench of this Court to re-open proceedings: Codelfa at 38.

37 In the light of the provisions of s 179 (Handley JA in Mitchforce at [204] remarked that it was the widest privative clause he had seen), we intend to deal with the issues raised in these proceedings on the basis that this Court is a court of last resort (although we recognise that there remains an issue about that matter in light of the Hickman principle). In those circumstances, we shall proceed to determine, in the exercise of our discretion, whether the circumstances of this matter are sufficiently exceptional so as to warrant re-opening of the appeal proceedings. In doing so, we are cognisant of the fact that the High Court in DJL has left open the question as to whether even a court of last resort had the discretion to re-open a perfected judgment.

38 We have concluded that there exists neither exceptional circumstances nor an irremediable injustice warranting re-opening of the appeal proceedings. There are three bases upon which we arrived at that conclusion. The first is that on 3 September 2002 Haylen J issued orders under s 4 of the Summary Jurisdiction Act against the three applicants. The applicants moved to have the prosecutions dismissed for having been commenced after the expiration of the limitation period prescribed in s 49(4) of the Occupational Health & Safety Act 1983. The motions were dismissed. There was no appeal by the applicants against the orders made by Haylen J under s 4 of the Summary Jurisdiction Act and no appeal against his Honour's decision of 12 December 2003 dismissing the applicant's motions. Section 179 provides that subject to the exercise of a right of appeal to a Full Bench of the Commission, a decision or purported decision of the Commission (however constituted) is final. Further, the applicants have not made any application in respect of the proceedings before Haylen J and if they were successful in the present motion that would have no effect on those proceedings.

39 There is no doubt the time for appeal against the making of the orders by Haylen J is well passed and it seems to us that any decision to re-open for the purpose of vacating orders made in the appeal would not necessarily lead to the outcome the applicants seek and may very well be a futile exercise. There is no certainty at all that if we were to vacate the orders made in TMG, the trial judge would set aside the proceedings. Haylen J, in regularising the error made by Schmidt J, has made what we regard as valid orders under s 4 of the Summary Jurisdiction Act and whilst it would be a matter for his Honour, it does not automatically follow that by vacating the orders made on appeal the proceedings before his Honour are invalidated.

40 We make the further observation that having regard to the judgment in TMG and the reasoning of the Full Bench, Schmidt J was plainly wrong in refusing to issue the orders. Whilst TMG may have been incorrect to the extent that it was held there was jurisdiction under the combined operation of s 196 of the Industrial Relations Act and s 5F of the Criminal Appeal Act to hear and determine the appeal against the decision of Schmidt J, it does not seem to us that any injustice will be caused by not re-opening the appeal thereby allowing the trial before Haylen J to proceed without the further complications and delay that may arise from any decision to re-open the appeal proceedings and vacate the orders made on 27 May 2002 by the Full Bench in TMG. Accordingly, to paraphrase what Barwick CJ said in Bailey v Marinoff at 530, it would not promote the due administration of the law or the promotion of justice for this Court to reinstate the appeal proceedings in TMG.

41 The second reason why we do not consider this is an exceptional circumstance is that in TMG the Full Bench stated that since it was held that s 5F of the Criminal Appeal Act applied, the Full Bench did not consider it was necessary to determine definitively whether an appeal lay under s 5C, although the Full Bench indicated that it was inclined to the view that an appeal did lie: 116 IR 128 at [72]. The applicants in these proceedings have, in effect, asked that we reconsider the observation regarding s 5C, contending that no appeal did lie under that section. To embark on a reconsideration of s 5C would mean, effectively, that we were re-opening the judgment in TMG and we do not propose to do that. The observation made in TMG regarding s 5C, albeit not amounting to any more than obiter, stands.

42 Further, if we were to re-open TMG that would require consideration of the arguments of the respondent that the effect of the decision could have been, or could be, reached by the Full Bench by the exercise of the Court's power in s 154 of the Industrial Relations Act to grant declaratory relief, although these arguments were strongly contested by the applicants on a number of bases including by reliance on the judgment of the Victorian Court of Appeal in Director of Public Prosecutions v His Honour Judge G D Lewis and Anor [1997] 1 VR 391. Nevertheless, we incline to the view that, were we to re-open TMG, the approach in the Victorian case may well lead to the grant of declaratory relief of the kind sought by the respondent since the circumstances which led the Victorian Court of Appeal to grant declaratory relief were remarkably similar to those in the proceedings taken against the decision of Schmidt J, if the Full Bench had then been persuaded that an appeal did not lie under s 5F of the Criminal Appeal Act. 43 The similarities included that the fact that the foundation of the order made by Schmidt J was an erroneous application of the law, the prosecution had no other avenue of appeal and because of the manifest public interest in bringing offences under the Occupational Health and Safety Act to trial if technical issues in the commencement of such proceedings could be resolved (see Director of Public Prosecutions v His Honour Judge G D Lewis and Anor at 402). Our preliminary consideration of this issue strengthens our view that it would be inappropriate to re-open TMG.

44 Finally, we consider there is an important public interest embodied in the principle of finality of litigation, a purpose to which the authorities referred to, and s 179 itself, are directed, although we note the applicants' submission that if the relief it seeks is not granted by the Full Bench they will seek prerogative relief in the Court of Appeal, a position that seems somewhat inconsistent with the main thrust of their contentions in these proceedings that this Court is a court of last resort by virtue of s 179.

45 Whilst any claim for relief in the Court of Appeal is, of course, a matter for the applicants, it was submitted in that respect that the preferable course, rather than the applicants seeking prerogative relief to which they allege they are entitled, is for this Full Bench to re-open and vacate the orders earlier made. We do not agree. Whilst we have proceeded on the basis that this Court is a court of last resort for the purpose of considering whether there are exceptional circumstances warranting re-opening, we are mindful of the force of what was said in Grierson and Bailey v Marinoff and the absence of any persuasive authority regarding the power of a court of last resort to re-open proceedings after orders have been perfected. But also, we consider there does not exist in this case an exceptional circumstance that overcomes the fundamental principle of finality of litigation. In this regard we note the reference to Venkata's case in Codelfa at 39: Even before report, whilst the decision of the Board is not yet res judicata great caution has been observed in permitting the rehearing of appeals. In the last case to which we were referred, that of Hebbert v. Purchas (1871) L.R. 3 P.C. 664, where a litigant alleged, before report and approval, that he had been disabled by want of means from appearing and maintaining his case, the Lord Chancellor said: - 'Having carefully weighed the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finalty "(sic)" of the decisions of the Judicial Committee, their Lordships are of opinion that expediency requires that the prayer of the petitions should not be acceded to, and that they should be refused.' There is a salutary maxim which ought to be observed by all Courts of last resort - Interest reipublicae ut sit finis litium . Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this.

46 The applicants point to the re-opening of the appeal by a Full Bench of the Commission in Mitchforce Pty Ltd v Starkey (No 2) (2003) 130 IR 378. That case is plainly distinguishable from the present as it was a quite exceptional circumstance brought about by what the majority considered was a need for judicial comity following an invitation by the Court of Appeal to the Full Bench to reconsider its decision to refuse leave to appeal in Mitchforce v Starkey (2002) 117 IR 122 and involving significant jurisdictional issues and where Mason P held that the Full Bench's decision to refuse leave to appeal was interlocutory: Mitchforce 57 NSLWR at [149]. That proposition was accepted by both parties in Mitchforce. The judgment in TMG was not interlocutory and it does not raise significant jurisdictional issues because they have now been resolved in Joy Manufacturing.

47 The applicants also referred to Gregory John King v Cake It Away Pty Ltd [2004] NSWIRComm 377 and Vasile Nan v Andreas Van den Berg & Ors [2004] NSWIRComm 367. In neither case did the Full Bench re-open nor did either Full Bench determine that there was power to re-open after orders had been perfected.

48 We confirm the orders made on Friday 25 February 2005 that the notices of motion by the applicants be dismissed and that the applicants are to pay the respondent's costs of the proceedings.

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