Ove Arup Pty Ltd & Ors v Industrial Court of NSW & Anor [2006] NSWCA 28 | Case summary

Ove Arup Pty Ltd & Ors v Industrial Court of NSW & Anor [2006] NSWCA 28 | Case summary | Zoe

[12]

27 February 2006 OVE ARUP PTY LTD & ORS v INDUSTRIAL COURT OF NEW SOUTH WALES & ANOR Judgment 1 SPIGELMAN CJ: I agree with Basten JA. 2 MASON P: I agree with Basten JA. 3 BASTEN JA: This application concerns a number of prosecutions which are proceeding in the Industrial Relations Commission of New South Wales, for offences under the (now repealed) Occupational Health and Safety Act 1983 (NSW) ("the OH&S Act"). The alleged breaches of s 17 of that Act arose out of work being undertaken in 1995 to upgrade Kogarah railway station. During the work, a gas line was ruptured, the escaped gas subsequently exploding (twice) and causing the death of two people and a range of injuries to others. Proceedings for contravention of the OH&S Act were commenced on 12 October 1999, by the issue of a summons for prosecution against each of a number of defendants (including the present Claimants) in the Industrial Relations Commission. (The Commission in Court Session is, from 9 December 2005, known as the Industrial Court of New South Wales: see Industrial Relations Act 1996 (NSW), s 151A.) 4 On 3 February 2000 each of the Claimants filed motions seeking dismissal of the proceedings, which motions were heard by Schmidt J in June and August 2000. On 29 August 2000 her Honour made orders requiring the prosecutor to provide particulars: see WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority of New South Wales & Ors (2000) 101 IR 271. The primary issue dealt with in that judgment was the time constraint imposed by s 49(4) of the OH&S Act, requiring that proceedings for offences be instituted within two years of it appearing from a Coroner's report, or proceedings at an inquest or inquiry, that an offence against the Act had been committed. Her Honour did not finally dispose of the motions for dismissal on that occasion. 5 A further hearing on the motions took place in April 2001 and, on 31 May 2001, her Honour delivered judgment dismissing all 18 prosecution summonses issued against the Claimants: see WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority of New South Wales & Ors (2001) 108 IR 121. 6 On 20 June 2001, an inspector (Mansell) who appears to have taken over carriage of the prosecutions, filed an appeal against her Honour's decision. That appeal came before a Full Bench of the Commission early in 2002. On 27 May 2002 the Full Bench delivered judgment upholding the appeal and setting aside the orders made by the primary judge. Each of the present Claimants was a party to that appeal. The effect of the judgment of the Full Bench was to reinstate the prosecutions: see WorkCover Authority of NSW (Inspector Mansell) v TMG International Pty Ltd & Ors (2002) 116 IR 128 ("TMG"). 7 At the present time, the prosecutions have proceeded for some nine days before Haylen J in the Commission, a hearing which is expected to resume in March of this year. 8 The application before this Court seeks orders challenging the decision of the Full Bench in the TMG interlocutory appeal of May 2002, primarily on the ground that there was no jurisdiction to hear such an appeal. The proceedings in this Court were commenced by summons filed on 8 March 2005, almost three years after the judgment of the Full Bench. It will be necessary to consider the explanations given for that delay in more detail below. However, those explanations include, in part, further proceedings taken in the Commission, which it is convenient to identify at this stage. 9 In its judgment of May 2002, the Full Bench noted that the respondents to the appeal before it had sought to have the appeal dismissed as incompetent. Motions were filed to that effect. The Court stated at [19]-[20]: "The motions were expressed in similar terms. The grounds and reasons for the motions went primarily to the contention that s 5F of the Criminal Appeal Act could not be used to bring the appeal because it related to interlocutory orders and the effect of the orders made by Schmidt J were [sic] final. The appellant later changed its position in relation to the application of s 5F of the Criminal Appeal Act and sought leave to bring the appeal pursuant to s 187 of the Industrial Relations Act . At the hearing of the motions and the appeal, and having notified the respondents of a further change in its position, the appellant sought leave to rely not only on s 5F but also, in the alternative, on s 5C of the Criminal Appeal Act or, in the further alternative, on s 187 of the Industrial Relations Act . When the matters came before the Full Bench in February 2002 all parties took the opportunity to make submissions on the motions, the application to extend time and the appeal proper. There was also full debate on the issue of the statutory basis of the appeal." 10 After considering authorities in the Commission and the terms of the relevant statutory provisions, the Court concluded at [43]-[44]: "Nothing that has been put in these proceedings would cause us to take a different view of s 5F to that expressed by the Court in Concrete Constructions and Ridge . Consequently, the extended meaning given to the term 'indictment' in s 2 of the Criminal Appeal Act includes the summonses originally filed in these proceedings. Section 5F(2) of the Criminal Appeal Act in its application to this jurisdiction by s 196 of the Industrial Relations Act provides for an appeal as of right by a prosecutor in respect of an interlocutory judgment or order. The central issue, therefore, in considering whether s 5F provided the statutory basis for an appeal in these proceedings is whether the judgments or orders of Schmidt J made on 29 August 2000 and 31 May 2001 were interlocutory." 11 After considering the issue thus identified the Court concluded at [72]: "Accordingly, we find that the orders made by Schmidt J on 29 August 2000 and 31 May 2001 were interlocutory orders and that the appeal by the appellant pursuant to s 5F of the Criminal Appeal Act is competent. 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."

[13]

The Court nevertheless expressed a preference for the view that s 5C of the Criminal Appeal Act also provided a right of appeal against "her Honour's final judgment". The Court then considered, somewhat more briefly, the substantive issues raised by the appeal, and held that the primary judge had erred in dismissing the proceedings and set aside her Honour's judgment. 12 On 28 April 2004, in entirely separate proceedings, a Full Bench, similarly constituted as in the Claimants' matter, took a different view of the operation of s 5F of the Criminal Appeal Act: see Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107. In Morrison, the Full Bench effectively reversed the position it had taken in three earlier unanimous judgments: Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16 ("Concrete Constructions"); Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 ("Ridge"); and the matter referred to above involving the present Claimants and known as "TMG". At [62] In Morrison, the Court held: "It follows from what we have that we have it appropriate to reconsider the earlier judgments of this Court … , 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." 13 In Morrison, the Court also held that the orders of the primary judge in that matter, granting a permanent stay of the prosecutions, was not an order which could be the subject of an appeal under s 5C of the Criminal Appeal Act. The Court noted, in passing, that it had been inclined to a different view in relation to the orders under appeal in TMG, without indicating whether it adhered to that view or not: Morrison at [64]. 14 On 27 October 2004, six months after the delivery of judgment in Morrison, the Claimants filed notices of motion in the Commission seeking leave to reopen the appeals which had been upheld in TMG, so that the orders might be vacated and the appeals dismissed. The grounds identified the reasons of the Court in Morrison as the basis for concluding that the Full Bench had no jurisdiction to consider the appeals which it had upheld in May 2002. 15 The Full Bench heard argument on the reopening application on 31 January 2005 and delivered judgment on 28 February 2005, declining to reopen its earlier judgment: Ove Arup & Ors v Inspector Mansell [2005] NSWIRComm 49. In the present proceedings, the Claimants also seek orders setting aside that decision of the Full Bench, presumably for the purpose of having the matter remitted for further consideration, although that order was not expressly sought. 16 As the Claimants recognised in their summons in this Court, the application was likely to raise an argument that the privative clause in s 179 of the Industrial Relations Act 1996 (NSW) precluded the relief sought in this Court. As a matter of construction, they sought a declaration to the effect that that provision did not prevent the grant of relief but, in the alternative, also sought a declaration that s 179 was "invalid in that it is inconsistent with Chapter III of the Constitution". However, this point was not pressed at the hearing of the appeal.

[21]

2005 refusal to reopen judgment 20 The first issue addressed by the Full Bench was whether it had power to reopen its earlier judgment: [2005] NSWIRComm 49 at [10]. It noted the decision of the High Court in DJL v The Central Authority (2000) 201 CLR 226, to the effect that the Full Court of the Family Court did not have power to reopen final orders after their entry. It further noted the dictum in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [44] that there was no decision as to the position of that Court after entry of its final orders. 21 The Full Bench concluded that the first question it needed to address was whether its orders had been "perfected": at [24]. It answered that question in the affirmative at [31]. That conclusion is not challenged. The second question it identified was whether it should properly be characterised as "an intermediate appellate court" or as a "court of last resort": at [32]. The Full Bench referred to some of the statutory provisions governing the operation of the Court in order to answer that question, concluding, without finally deciding, that "a Full Bench of the Commission in Court Session might readily be regarded as a court of last resort subject only to challenge under the Hickman principle": at [35]. It then proceeded to deal with the matter on the basis that it had such power, but subject to the constraint that, even if power existed, it should only be exercised in "quite exceptional" circumstances, a test derived from the joint judgment of Mason and Wilson JJ in State Rail Authority of NSW v Codelfa Construction Pty Ltd (No. 2) (1982) 150 CLR 29 at 38. 22 It is curious that the Full Bench sought to approach the question of power in this way, establishing a dichotomy between an intermediate court of appeal and a court of final resort. At [20] their Honours had set out a passage from the majority judgment in DJL in the following terms: "[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." 23 Dealing with the matter as a question of statutory construction, it is, of course, relevant that there is no statutory appeal from a decision of the Full Bench and that judicial review of its decisions are strictly circumscribed. (That conclusion would need to be identified more precisely in the light of the replacement of s 179 of the Industrial Relations Act, containing the privative clause, by a new provision in different terms, by the Industrial Relations Amendment Act 2005, which came into operation on 6 December 2005, after the decision of the Full Bench.) 24 In any event, for present purposes, it is not necessary to determine the correctness of the Full Bench's assumption that it had power, that being an assumption favourable to the Claimants' position. The present matter of significance derives from the reasons for concluding that there were neither exceptional circumstances, nor irremediable injustice, which would warrant reopening the earlier appeal proceedings: see [2005] NSWIRComm 49 at [38]. The first reason identified for reaching that conclusion was that the issues addressed by Schmidt J had been reagitated before Haylen J on remittal from the earlier Full Bench decision and had been differently decided. The Claimants had not sought to appeal the orders made by Haylen J, and the proceedings before his Honour had continued. 25 The second reason relied upon was that, on the basis that s 5F, properly construed, did not confer jurisdiction on the Full Bench, it would be necessary to consider whether jurisdiction nevertheless arose pursuant to s 5C of the Criminal Appeal Act, as applied in the Industrial Relations Commission, or by virtue of s 154 of the Industrial Relations Act. It would have been necessary for the Full Bench to reconsider its dictum that s 5C might provide a source of jurisdiction. The Full Bench also took the view that there was force in the argument that s 154 provided an independent source of jurisdiction: see [42] at [43]. This was, in one sense, an argument based on lack of utility in reopening a judgment in order to correct one error which might not have been decisive. 26 Thirdly, the Full Bench considered that the principle of finality of litigation itself derogated from the appropriateness of vacating orders earlier made. Their Honours considered "there does not exist in this case an exceptional circumstance that overcomes the fundamental principle of finality of litigation": at [45]. On one view, it was the principle of finality which required that there be quite exceptional circumstances: on that approach, the principle of finality did not provide an independent ground for refusing to reopen the earlier judgment, but merely an explanation as to why the Full Bench should be reluctant to take such a step.

[22]

Discretionary factors militate against intervention 27 The factors relied upon by the Full Bench in determining that it would not reopen its earlier judgment militate against intervention by this Court, again on the assumption that there is power. However, this Court was invited to reconsider the force of the argument that there were alternative bases of jurisdiction. If those bases did not, on a proper construction of the relevant statutory provisions, arise, an important discretionary factor, operating against intervention, would have been removed. The Claimants were correct in identifying this as an issue to be addressed and it is one to which attention will be given below. 28 Before turning to the alternative bases of jurisdiction, it is convenient to identify other factors which militate against intervention. The first is that the arguments which found favour in Morrison could have been, but were not, agitated before the Full Bench which dealt with the appeal in the Claimants' case. Secondly, even if the Claimants, having failed to argue the point fully below, had come promptly to this Court, and sought to raise the point here, discretionary considerations might have weighed against this Court considering the issue. However, in this case they seek to come to this Court some three years after the original decision of the Full Bench, which is now sought to be challenged. Thirdly, they have not sought to argue that, if convicted of the offences, they would not have a right of appeal in which they could raise the same complaints which they raised unsuccessfully at the interlocutory stage before Haylen J. No doubt that right of final appeal will arise only after significant costs have been incurred (assuming the charges are actively resisted on their merits), but that fact has rarely induced courts exercising supervisory jurisdiction to intervene in on-going criminal proceedings: see [74] below. 29 Against the argument that these matters could have been raised below, the Claimants assert that there was no reason to raise them below because the prosecutor had, by the time the matter came before the Full Bench, abandoned reliance on s 5F. That factual assertion is denied, and on the basis of the material before this Court, has not been made good. No doubt the primary focus of the argument before the Full Bench was on provisions other than s 5F: nevertheless, reliance on that provision was expressly not abandoned by the prosecutor. Furthermore, if it had been, one would have anticipated an immediate application to reopen, based on denial of procedural fairness. That did not happen.

[23]

Alternative bases of jurisdiction 30 The primary alternative basis of jurisdiction referred to by the Full Bench was s 5C of the Criminal Appeal Act. That provision, as in force at the time of the 2002 appeal, read as follows: 5C Appeal against quashing of an indictment Where the Supreme Court or the District Court has quashed any information or indictment or any count thereof or the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 or any charge specified in any such an application, or the Land and Environment Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under s 41(1) of the Land and Environment Court Act 1979 or any charge specified in such an application, or a Court of Coal Mines Regulation in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967, as applied by s 152(3) of the Coal Mines Regulation Act 1982, or any charge specified in such an application, the Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the order made, and such Court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary." 31 The operation of this provision in the Industrial Relations Commission is effected by s 196 of the Industrial Relations Act. That section, relevantly, 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 include a reference to the Industrial Registrar. 32 This provision has two limbs: the first gives rise to the following questions, namely whether,

[29]

(c) whether her Honour's order "quashed" any such application or any charge specified therein. 33 In relation to the first limb, the Claimants argued that the initiating applications in the present proceedings were not either "informations" or "indictments" for the purposes of s 5C. Rather, they constituted applications for orders under s 4(1) of the Summary Jurisdiction Act and were therefore instruments of a kind falling within the second limb of s 5C, and not the first. In addition, the Claimants argued that the orders made by Schmidt J did not involve the "quashing" of those instruments. 34 In relation to the second limb, the Claimants argued that the inspector in whose name the prosecutions were commenced was not "the Crown" and therefore the second limb was not engaged. 35 The operation of s 5C of the Criminal Appeal Act was given considered attention by the High Court in John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508. That case involved a prosecution for false or misleading advertising in breach of the Consumer Protection Act 1969 (NSW). The information was struck out by Yeldham J in the Supreme Court, a decision which was reversed by the Court of Criminal Appeal. One question before the High Court was whether the Court of Criminal Appeal had jurisdiction pursuant to s 5C of the Criminal Appeal Act. The offence was brought before the Supreme Court in exercise of its summary jurisdiction, as permitted by the Consumer Protection Act. The first question in relation to the construction of s 5C was whether the first limb operated in relation to an application brought under the Summary Jurisdiction Act, or whether such a matter could only be dealt with under the second limb. The High Court declined to limit the operation of the first limb in that way. 36 Secondly, the High Court addressed the effect of the orders of Yeldham J dismissing the proceedings because the charge, in failing to allege in what material particular the advertisement was false or misleading, was invalid. The Court was satisfied that orders dismissing the information, striking out the summons and dismissing the proceedings generally constituted a "quashing" of the information for the purposes of the first limb. The joint judgment of Mason CJ and Deane and Dawson JJ, at 516 stated: "In a case where proceedings are commenced by information, the operative act (for commencing the proceedings) is not the preparation or the signing of a written document called an information. It is the laying of the information that an offence has been committed before the Court whose jurisdiction to deal with the offence is being invoked. In that context, the reference to an information being 'quashed' in the first limb of s 5C should be construed as comprehending a decision by a judge … 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." 37 Because the Consumer Protection Act used the term "information" no question was raised as to the relevant commencement process falling which the express words of the first limb. In the present case, it is necessary to consider whether those words are satisfied. 38 The OH&S Act provided for proceedings for an offence against the Act to be dealt with summarily, including, before the Industrial Relations Commission in Court Session, but did not provide for any particular mechanism by which they were to be commenced: see s 47(1). The Rules of the Commission, however, provided that proceedings before the Commission for an offence were to be commenced "by application for summons": r 219(1). The application was required to state the nature of the offence alleged and was required to be accompanied by a copy of a summons, to be signed by the Registrar. So long as it appeared to the Registrar to be properly filed, the Registrar was required to issue the summons, commanding the defendant to appear before the Commission: r 220. The procedure under s 4 of the Summary Jurisdiction Act was not entirely consistent with the rules of the Commission, as then in force. Thus, s 4 required that the application for an order that an alleged offender appear to answer a charge be made by a judge: in the Commission, the rules provided that the order was to be in the form of a summons issued by the registrar. However, although the inconsistency was noted in the course of argument before this Court, no reliance was placed upon it in these proceedings. 39 The terms "information" and "indictment" were well-understood general law terms. Their origins were discussed by Brennan J and Toohey J in John L Pty Ltd, at 523 and 537-539 respectively. However, the historical understandings are no longer precisely applied. In R v Slator (1881) 8 QBD 267 at 274, Bowen J stated, in a passage quoted by Toohey J, that there were two ways of proceeding against a person accused of a crime: "One is by proceeding against before a grand jury, and time out of mind that proceeding has been known as an 'indictment'; the other mode is by proceeding without a grand jury upon an information, which is initiated either by the law officers of the Crown or by a private prosecutor with the leave of the court."

[30]

Technical elements of these definitions no longer operate: thus, we no longer use a grand jury, but retain the term "indictment". In the Criminal Appeal Act , that term is defined to include "any information presented or filed as provided by law for the prosecution of offenders". 40 The term "information" is not defined in the Criminal Appeal Act, but is generally understood to be a means of initiating a criminal proceeding which is to be dealt with summarily, as opposed to a "complaint" which designates the first step in civil proceedings to be dealt with summarily. (This language was adopted by the Justices Act 1902 (NSW), now repealed.) Furthermore, at common law an information did not need to be in writing. The term has now been abandoned; the commencement of criminal proceedings in accordance with the Criminal Procedure Act 1986 (NSW) now adopts the mechanism of a "court attendance notice". 41 On one view, the principle of construction adopted in John L Pty Ltd, by the majority, in relation to the meaning of "quashed", can appropriately be applied in relation to the term "information". On that approach, it may be sufficiently understood as a method (which nowadays can be assumed to be in writing) of commencing summary criminal proceedings. It would encompass a court attendance notice; there is no reason to suppose it would not encompass a document by which proceedings for an offence under the OH&S Act were instituted. 42 On another view, that reasoning is not appropriate in circumstances where the Summary Jurisdiction Act adopted a procedure which involved an application and summons, and not an information. The variation in statutory language should not be treated as inadvertent. The adoption, in the Summary Jurisdiction Act, of a procedure which involved neither an information, nor an indictment, demonstrated a conscious departure from traditional initiating processes in criminal proceedings. 43 To determine whether the first limb should be given a broad construction, in the manner suggested at [41] above, or whether it should be treated as not extending to other mechanisms for commencing criminal proceedings, is partly dependent on the scope and purpose of the second limb. 44 The second limb, in relation to the jurisdiction of the Supreme Court in its summary jurisdiction, involved three elements. First, it identified as its subject matter an application made under s 4(1) of the Summary Jurisdiction Act: as noted above, no challenge was mounted in the present proceedings to the satisfaction of that condition, on the possible basis that the application was made under the rules which were not entirely consistent with s 4(1) of the Summary Jurisdiction Act. 45 The second requirement was that the Court had "quashed" such an application. For reasons set out above, the order made by Schmidt J in relation to each relevant application, satisfied that condition. 46 Thirdly, it was necessary to establish that these were "proceedings to which the Crown was a party". The Claimant asserts that such a finding would be in conflict with dicta of the majority in John L Pty Ltd, holding that the departmental officer who commenced the prosecution in that case under the Consumer Protection Act was not "the Crown". 47 The prosecutor argued that the dicta of the majority should not be applied in relation to the different statutory scheme established by the OH&S Act and the Industrial Relations Act. Further, he submitted that the reasoning of the minority in John L Pty Ltd, comprising Brennan J and Toohey J, should be preferred, their Honours' reasoning being critical for their conclusions, because they did not accept that the first limb of s 5C applied. 48 Before turning to the judgments in John L Pty Ltd, it is convenient to note the history of the Summary Jurisdiction Act. As the Attorney-General, Mr McCaw, noted in his Second Reading Speech on the Bill (Parliamentary Debates, Assembly, 7 November 1967, 3rd Series, Vol 70, p 2878-2879) the purpose of the Bill was to establish a procedural scheme "based upon parallel situations arising under the Justices Act of 1902". The intention was to permit the Parliament to vest jurisdiction in the Supreme Court to deal with certain criminal proceedings in a summary fashion, where thought appropriate by the Parliament. Thus the Attorney noted: "The type of legislation which would invoke this jurisdiction is illustrated in a bill now before this House, the Petroleum (Submerged Lands) Bill … . That Bill provides for extremely heavy pecuniary penalties and, in certain circumstances, for the confiscation of property of great worth. It was felt, as I said at the introductory stage, that it was improper to leave such matters to magistrates, who at present exercise summary jurisdiction in this State."

[35]

The Amendment Act deleted the words "Supreme Court or the District Court" and inserted in their stead "court of trial in any proceedings to which the Crown was a party": Criminal Appeal (Crimes) Amendment Act 1979, Schedule 1(5). 54 Given the historical context in which the phrase "proceedings to which the Crown was a party" first appeared in the Criminal Appeal Act, although it was not consistently used, it appears to have been intended to do no more than refer, at least by way of inclusion, to proceedings under the Summary Jurisdiction Act. The fact that the phrase appears in s 5A(3), but not in s 5A(1A), inserted at the same time, suggests that it was intended to be descriptive of proceedings which were, at that time, instituted by the Attorney-General, and not to distinguish one class of summary criminal proceedings from another. 55 Further amendments to these provisions were made consequent upon the enactment of the Director of Public Prosecutions Act 1986 (NSW). That Act created the office of Director of Public Prosecutions and conferred on the Director the power to institute and conduct proceedings, whether by indictment or summarily, for indictable offences, on behalf of the Crown: s 7(1)(a). With respect to other proceedings, s 8 provides: 8 Instituting other proceedings (1) The Director may institute and conduct: (a) committal proceedings for indictable offences, (b) proceedings for summary offences in any court, and (c) summary proceedings for indictable offences that may be dealt with summarily in Local Courts. (2) If the Director has instituted any such proceeding, the Director may: (a) institute and conduct, on behalf of the Crown or the prosecution, appeals in any court arising from the proceeding, and (b) conduct, as respondent, appeals in any court arising from the proceeding. (3) The Director may not exercise any function under this section in respect of a summary offence, unless (a) the offence is a prescribed summary offence, or (b) the person otherwise responsible for the prosecution or proceeding concerned has consented in writing.

[37]

It would appear, although the point was not argued, that the relevant offences under the OH&S Act were, at the time the prosecutions were launched, prescribed summary offences. 57 Offences under ss 15-19 of the OH&S Act were prescribed summary offences because s 48 of the OH&S Act provided as follows: 48 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) with the written consent of the Minister or a prescribed officer, or (b) by an inspector, or (c) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate. 58 In the present case, each of the charges was laid by an inspector appointed by the WorkCover Authority under s 31 of the Act. The WorkCover Authority of New South Wales was at the relevant time a statutory body representing the Crown, constituted by the Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 14. 59 If the prosecution could be instituted by the WorkCover Authority, the Crown would clearly be a party to the proceedings for the purposes of the Criminal Appeal Act. It is difficult to see why a different result should follow where, by statute, the Authority is empowered to appoint inspectors to exercise statutory functions, one of which is the prosecution of offences under the OH&S Act. 60 It does not matter that prosecutions may also be commenced by someone other than a person representing the Crown. Indeed, it is part of the Claimants' case that s 5C distinguishes between two classes of prosecutions, namely those instituted by or on behalf of the Crown and those instituted by persons not representing the Crown, to which the Crown cannot properly be said to be a party. 61 The next question is whether any different conclusion is required by John L Pty Ltd. The majority noted that the person who prosecuted the offence in issue was an officer of the Department of Consumer Affairs and that the proceedings were taken and prosecuted by him with the authority of the Acting Minister for Consumer Affairs. However, their Honours continued (at 518-519): "In the context of a provision conferring rights of appeal against a decision quashing an information or an indictment, there is no reason to give the reference to 'the Crown' being 'a party' a wider meaning than that which the words are, as a matter of ordinary language, apposite to convey. The proceedings were not brought in the name of the Crown, or by the Attorney-General or even by an officer such as the Director of Public Prosecutions in the exercise of a statutory entitlement to prosecute criminal proceedings on behalf or in the name of the Crown. They were brought by Mr Clayton as 'a person' (s 56(1)) and could be maintained by him, in that capacity, regardless of whether he remained in the employment of the Department of Consumer Affairs (contrast, eg, proceedings to which 'the Minister' (s 56B) or 'the Commissioner with the consent of the Minister' (s 56A(1)) is a party). They were not proceedings to which the Crown was a party in any accepted meaning of the words 'Crown' and 'party'." 62 The contrast drawn in the penultimate sentence of this extract between, on the one hand, a public servant who required the consent of the Minister to prosecute, but could maintain the proceedings even if he were no longer a member of the public service and, on the other hand, a statutory officer such as the Commissioner, indicates that the present case may fall into a different category. The inspector was appointed by a statutory authority representing the Crown, and brought the prosecution pursuant to his statutory authority as an inspector. 63 There is also a point of distinction to be found in the reference to the position of a Director of Public Prosecutions as an authority prosecuting on behalf of or in the name of the Crown. While the Director prosecutes indictable offences "on behalf of the Crown" he or she is "responsible to the Attorney-General for the due exercise of the Director's functions", although without derogation from the statutory authority conferred on the Director in relation to the preparation, institution and conduct of proceedings: Director of Public Prosecutions Act, s 4(3). The Director is thus given a measure of independence, but little would seem to turn on whether the functions of the office are exercised "on behalf of the Crown" or otherwise. 64 The various provisions of the Criminal Appeal Act having been amended to provide for the Director of Public Prosecutions to appeal, including for the purposes of s 5C, it would appear that the Criminal Appeal Act treats the Director of Public Prosecutions as, for relevant purposes, an agent of the Crown. However, when the provisions of the Criminal Appeal Act are applied pursuant to s 196 of the Industrial Relations Act, in the Commission, a reference to the Director is taken to include a reference to the prosecutor in the proceedings before the Commission: s 196(3)(e). On the assumption that there may be private summary prosecutions under the Summary Jurisdiction Act (as occurred in John L Pty Ltd), and assuming that they may be prescribed summary offences, the Director can take over the prosecution at any time, thereby, on the assumption that the Crown is then a party, permitting an appeal to be brought under the express power conferred on the Director by s 5C of the Criminal Appeal Act. In the Commission, where the prosecutor is given a power of appeal, at least where the prosecutor is an inspector, a coherent operation will be permitted if the prosecutor can appeal, as the Director could, without the words "to which the Crown was a party" conferring a constraint. That result should be accepted, as the appropriate construction of the phrase appears not to have been intended to impose a specific constraint, either in its original operation or in the expanded operation of the section. 65 That is not to say that there will not be prosecutions to which the Crown is not a party. All that needs to be determined for present purposes is that a prosecution under the OH&S Act brought by an inspector is, for the purposes of the Criminal Appeal Act, s 5C, a proceeding to which the Crown was a party. 66 The point of departure from the terms of the Consumer Protection Act considered in John L Pty Ltd is important in another respect. Thus, the majority judgment assumed that Mr Clayton, as a private person, could continue the proceedings whether he remained employed in the Department of Consumer Affairs or not. Although it is not necessary to determine the matter for present purposes, it is at least doubtful whether, when a person ceases to be an inspector under the OH&S Act, proceedings for offences under that Act may be continued by that person. As appears from Part 3, Division 4 of the OH&S Act, inspectors are given powers similar to those conferred upon police officers. It would be anomalous if those powers remained after termination of the statutory office. 67 As noted by Toohey J in John L Pty Ltd, prosecutions instituted by police have historically been referred to as "Crown prosecutions", as have other prosecutions under statute in New South Wales conducted by officers of the Crown: 163 CLR at 541-542, referring to Lenthall v Hillson [1933] SASR 31; Ex parte WA Grubb Pty Ltd; re Johnston (1949) 66 WN(NSW) 224 and Ex parte Browne; Re McNamara (1967) 68 SR(NSW) 188, all of which pre-dated the 1979 Amendment Act. 68 As Brennan J noted in John L Pty Ltd, the Crown, by such a name, is not a party to summary criminal proceedings in the Supreme Court, as those proceedings are a creature of statute. His Honour was of the view that this limb of s 5C might be devoid of operation if the reference to "the Crown" as "a party" were not given a broader meaning than that traditionally associated with prosecutions under indictments or informations, at common law. 69 One might add that, were prosecutions brought by officers in the service of the Crown not given recognition as acts of the Government, there might be a serious question as to whether a prosecution involving matters of great public importance might not lapse upon the death of the inspector who brought the prosecution. The inspector who commenced the prosecutions did not do so in any private interest, or at private expense. He did so as an officer appointed by the WorkCover Authority for that purpose amongst others, the WorkCover Authority itself being a representative of the Crown. 70 In England, there is an established line of authority with respect to the analogous position of prosecutions brought by police officers. Such proceedings do not abate upon the death of the nominal informant because the true informant is taken to be the office from which he or she obtains instructions and direction. Thus, in Hawkins v Bepey [1980] 1 WLR 419, a prosecution instituted by a chief inspector, who subsequently died, was held to be undertaken by him in a representative capacity, on behalf of the Chief Constable who controlled and directed the relevant division of the police force under the Police Act 1964 (UK): see pp 422H-424D (Watkins J, Browne LJ agreeing, and the authorities referred to, including Reg v Truelove (1880) 5 QBD 336 at 340 (Lush J) and Reg v Burt, Ex parte Presburg [1960] 1 QB 625 at 635 (Lord Parker CJ). To similar effect, the Full Court of the Supreme Court of Queensland held in Elliott v Taylor [1947] St R Qd 210 that a prosecution for a breach of the National Security (Prices) Regulation (Cth), brought by a departmental officer, was in effect a criminal proceeding brought on behalf of the Crown which did not abate, because the Crown "has control over the proceedings": at 212 (E.A. Douglas J). Mathews J agreeing stated (at 213) in bald terms: "On the authorities quoted I think the Crown is a party to all criminal proceedings and consequently, the Crown Solicitor, acting for and on behalf of the Commonwealth, can institute this appeal." 71 It is not necessary for present purposes, to go so far as the Full Court did in Elliott v Taylor; it is sufficient to find, in accordance with the English authorities, that an officer, carrying out statutory functions in the public interest effectively represents the authority to which he is subject, by way of control and direction, which is taken to be the real party to the proceedings. In this case that body is the WorkCover Authority, which represents the Crown. Accordingly, the Crown is a party to the prosecutions. 72 It should be accepted that the Full Bench had jurisdiction to hear and determine the appeal from the judgment of Schmidt J, pursuant to the second limb of s 5C of the Criminal Appeal Act. It is unnecessary to reach a conclusion as to whether or not the first limb of s 5C was satisfied. 73 It is also unnecessary to determine whether the Full Bench had jurisdiction pursuant to s 154 of the Industrial Relations Act. That section provided: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 74 The argument that this provision confers jurisdiction on the Full Bench to make binding declarations of right in relation to matters determined by a judicial member sitting alone, in circumstances where specific provisions granting rights of appeal do not apply, is unattractive. 75 Support for such a broad operation of the provision was said to derive from the decision of the Victorian Court of Appeal in Director of Public Prosecutions v Judge Lewis [1997] 1 VR 391. However, I can find nothing in the judgment of Tadgell JA (with whom Ormiston and Charles JJA agreed) which would support such a construction. In that case the Supreme Court was exercising its supervisory jurisdiction in respect of the County Court: the jurisdiction was undoubted, the nature of the relief available and discretionary considerations with respect to that relief were in issue: see pp 401-402. The Director in that case had apparently sought relief by way of judicial review or declaration, in order to call into question a ruling of the County Court. The matter came before the Court of Appeal by way of a reference pursuant to s 17B(2) of the Supreme Court Act 1986 (Vic): [1997] 1 VR at 392. Thus, after considering the relevance of Craig v South Australia (1995) 184 CLR 163, Tadgell JA stated (at 401, line 50): "The order for a stay was characterised by the High Court at 186 as having depended essentially on 'a question of fact involving an element of discretionary judgment'. A court will be slow to make a declaration which impinges directly upon the course of proceedings in a criminal matter: eg Sankey v Whitlam (1978) 142 CLR 1 at 23-6. A principal reason, no doubt, is that it is generally desirable in the public interest that criminal proceedings should be allowed to pursue their usual course, without punctuation by applications for interlocutory relief in relation to them. Plainly, however, Sankey v Whitlam authorises a grant of declaratory relief in an appropriate case, even though it be directed to pending criminal proceedings; there is other authority to a like effect … ."

[40]

The effect of that provision would appear to be to render the new s 179 the law to be applied by this Court in this case. This conclusion was accepted by both parties. Accordingly, if it is correct to see a privative clause as expanding the jurisdiction which might otherwise have been conferred on a tribunal, that effect should be understood as retrospective in the sense that an earlier decision of the Commission, although subject to review at the time it was passed, may no longer be subject to review, and vice versa. 82 Section 179 in its present form reads as follows: 179 Finality of decisions (1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal. (2) Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by an court or tribunal. (3) This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law. (4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of: (a) the Full Bench of the Commission in Court Session, or (b) the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision. (5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise. (6) This section is 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. (7) In this section: decision includes any award or order. 83 Thus, if the decision of the Full Bench in the 2002 appeal can properly be described as a "purported decision" only, a challenge may be brought "on an issue of the jurisdiction of the Commission" pursuant to sub-s (4)(a). Arguably, questions of construction as to the effect of the privative clause, in relation to such decisions, no longer require consideration, so long as a wrongful assertion of jurisdiction on the part of a Full Bench has been established. For the reasons set out above, no wrongful assertion of jurisdiction has been established. 84 I would dismiss the application and order the Claimants to pay the Opponents' costs of the proceedings in this Court, in relation to the First Opponent, limited to those incurred on a submitting basis. **********

Ove Arup Pty Ltd & Ors v Industrial Court of NSW & Anor

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