Packer v The Greater Murray Area Health Service

JUDGMENT:

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CHRISTINE PACKER V THE GREATER MURRAY AREA HEALTH SERVICE Application for under s.106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT 1 On 16 June 2000 Christine Packer (" the applicant") filed a Summons for Relief under s 106 of the Industrial Relations Act 1996 ("the Act"). The Greater Murray Area Health Service was named as the first respondent and the Health Administration Corporation was named as the second respondent. 2 On 6 January 2000 the applicant had made application under s 84 of the Act relating to alleged unfair dismissal. The unfair dismissal claim was based on allegations relating to demotion of the applicant to a lower grade than that previously held by the applicant. The unfair dismissal claim has been the subject of proceedings before a member of the Commission but conciliation, I am informed, was unsuccessful. The claim has not at this stage proceeded to arbitration. 3 On 16 June 2000 the applicant filed a notice of motion seeking an order that the proceedings initiated by the applicant under s 84 of the Act (matter No. 25 of 2000) be joined and heard with the application under s 106 of the Act. 4 The notice of motion came on for hearing before me on 13 July 2000. 5 Ms P Lowson, of counsel, appeared for the applicant and Mr G Hatcher, of counsel, appeared for the first respondent. 6 Mr Hatcher immediately put into issue the Court's jurisdiction to entertain the notice of motion. His fundamental submission was that because the Commission in Court Session did not have jurisdiction to deal with an application made under s 84, it had no jurisdiction to deal with such an application in any sense, by way of joinder or otherwise. Essentially, Mr Hatcher argued that the Commission and the Commission in Court Session were separate and distinct; the Commission in Court Session did not have the power to deal with unfair dismissal claims; for the Commission and the Commission in Court Session constituted by a Presidential Member who is also a judicial member to sit simultaneously would create a conflict in the exercise of powers under the Act. Reliance was placed on the comments of Wright J, President, in Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 448 where his Honour referred to the separateness and distinctness of the Commission in Court Session from the Commission. 7 Ms Lowson responded to the issue of whether the Court could join the matters by arguing that there was a general power under s 162 of the Act for the Commission to determine its own procedure. Ms Lowson also referred to rules 84 and 85 of the Industrial Relations Commission's Rules to support her proposition relating to joinder. Ms Lowson also submitted there was an inherent power in the Court to manage its own procedures. 8 I allowed Ms Lowson to proceed to make out a case in support of the applicant's notice of motion without ruling on the threshold argument by Mr Hatcher as to whether I had power to even entertain the notice of motion. 9 Ms Lowson tendered an affidavit by Marshall Sheehan, solicitor for the applicant in which the deponent expressed the view that the total factual matrix of the applicant's employment encompassed both the unfair contract proceedings and the unfair dismissal proceedings. The deponent also stated that there would be efficiencies in cost and time if the matters were heard together. Mr Hatcher objected to the views expressed by the deponent in his affidavit. The affidavit was accepted into evidence. Ms Lowson also tendered a statement of particulars by the applicant which had been filed in the unfair dismissal proceedings. Mr Hatcher objected to the tender of the statement as to the truth of its content. The statement was received into evidence. 10 Ms Lowson's submissions may be summarised as follows:

1. The relief sought by the applicant in the unfair dismissal proceedings includes reinstatement or re-employment to a position equivalent to the one held by the applicant prior to a staffing review in 1997, which would be at a level of at least Nurse Manager Grade 4. During the 1997 staffing review the applicant was not working in her substantive position, but was filling a higher grade position that was assessed at Nurse Manager Grade 7. The proceedings under s 106 of the Act seek redress in relation to the applicant's peremptory removal from this position in early 1998, and the consequent loss of income and career opportunity that followed;
2. There is no statutory prohibition on the Commission hearing two matters, one of which falls within the jurisdiction of the Commission and the other within the jurisdiction of the Commission in Court Session;
3. The basic principle is that the Commission should take the course that is most conducive to the just resolution of the dispute, having regard to the desirability of limiting the costs and delay of litigation: Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1991) ATPR 41-078;
4. A risk exists that, if the proceedings are not joined, different tribunals may make different findings of fact. 11 Mr Hatcher opposed the notice of motion, expanding on his earlier arguments relating to jurisdiction. Consideration

12 What I am asked to do is to join two matters, namely an application under s 84 of the Act and an application under s 106 of the Act, and to hear the two matters together. It was put to me that the reasons I should do this were firstly, the factual matrix of each of the matters was the same, secondly the relief sought spanned both s 84 and s 106, thirdly the calculation of any relief obtained in one matter may be affected by the outcome of the other matter and fourthly, there would be a conservation of Court time and costs if the matters were heard together. 13 The main complication in accepting what the applicant proposes is that the Industrial Relations Commission of New South Wales is constituted by two separate and distinct tribunals, namely, the Commission on the one hand and the Commission in Court Session on the other: GIO Australia Ltd v O'Donnell (1996) 70 IR 1 at 9-10; Hollingsworth v Commissioner of Police (1998) 81 IR 276 at 292, 309-310; Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 448. 14 The notice of motion seeking joinder came before me as a member of the Commission in Court Session. In that capacity I have no jurisdiction to hear an unfair dismissal claim. That power is reserved to the Commission: Ch 2 Pt 6; s 151; s 153. On the other hand, the Commission has no jurisdiction in relation to proceedings under Part 9 of Chapter 2 of the Act (unfair contracts): s 153. The applicant acknowledged that the relief sought resided in two separate jurisdictions. 15 In these circumstances, the applicant proposed that, in order to hear the claims under s 84 and s 106 of the Act, I should sit simultaneously as the Commission and the Commission in Court Session. 16 There is no express power in the Act enabling the Commission and the Commission in Court Session to sit simultaneously in the circumstances proposed by the applicant. I would have expected that if it had been the Legislature's intention to enable the Commission and the Commission in Court Session to sit simultaneously in order to exercise their separate functions, very clear and precise terms would need to have been enacted. Neither counsel for the applicant nor counsel for the respondent could refer me to any cases where this issue had been dealt with directly 17 I turn to the provisions of the Act to examine whether its construction assists in resolving the issue. 18 Section 151(1) of the Act provides that: "The Commission in Court Session is the Commission constituted by a judicial member or members only for the purposes of exercising the functions that are conferred or imposed on the Commission in Court Session by or under this or any other Act or law." 19 Section 151(2) provides that the Commission may be constituted by a judicial member or members when not exercising those functions conferred or imposed on the Commission in Court Session by or under this (the Industrial Relations Act 1996) or any other Act or law. Accordingly, I am able to constitute the Commission when it is performing a function within its jurisdiction, such as dealing with an unfair dismissal claim and I am able to constitute the Commission in Court Session when performing a judicial function, such as dealing with an unfair contract claim: s 153. However, I think that s 151(2) has to be read literally where it says, in effect, that a judicial member may constitute the Commission when not exercising the functions conferred or imposed on the Commission in Court Session. In my opinion, the meaning to be drawn from the words in s 151(2), to the effect that a judicial member may constitute the Commission when not exercising the functions conferred or imposed on the Commission in Court Session, is that I am prevented from exercising the functions of the Commission and the Commission in Court Session simultaneously. In other words, if I am exercising a function conferred on the Commission in Court Session pursuant to s 153(1), such as proceedings under Part 9 of Chapter 2 (unfair contracts), s 151(2) indicates that I may not constitute the Commission while exercising that function. 20 My attention was drawn by both Mr Hatcher and Ms Lowson to s 176(3) of the Act, which provides that: "If a matter arises in proceedings before the Commission (otherwise than in Court Session) that is within the jurisdiction of the Commission in Court Session, the Commission may continue to deal with that matter as the Commission in Court Session if: (a) the Commission is duly constituted or reconstituted by a judicial member or members, and (b) any member who is not a judicial member does not take part in the proceedings on that matter, and (c) only such evidence given in the existing proceedings before the Commission as is admissible in evidence in proceedings before the Commission in Court Session is taken into account in determining that matter." 21 Section 176(3) is a provision designed to address a contingency. That is, where a matter arises in proceedings before the Commission that is properly a matter that should be before the Commission in Court Session. In that event only the Commission in Court Session can deal with the matter and the Commission would have to be constituted or reconstituted by a judicial member or members. Any member of the Commission who may have been hearing the matter but who is not a judicial member, is to take no part in the proceedings. Thus, if there are proceedings before the Commission constituted by a member who is a judicial member and a matter arises during those proceedings that is within the jurisdiction of the Commission in Court Session, the judicial member may continue to deal with the matter but only as the Commission in Court Session and not the Commission. It is to be noted that there is no specific provision requiring the Commission in Court Session to be reconstituted as the Commission in the event a matter arises in proceedings over which the Commission in Court Session has no jurisdiction. 22 Section 176(3) only addresses the situation where a matter "arises in proceedings before the Commission". It does not address the situation proposed by the notice of motion. That is, from the outset of proceedings a member of the Industrial Commission of New South Wales, who is a judicial member, shall deal simultaneously with a matter within the jurisdiction of the Commission and a separate matter within the jurisdiction of the Commission in Court Session. 23 If anything, s 176(3) tends to support the proposition that there is a clear distinction to be drawn between the powers and functions of the Commission on the one hand and the Commission in Court Session on the other and that they need to be kept separate. For example, where a matter arises in proceedings before the Commission that is within the jurisdiction of the Commission in Court Session, any member who is not a judicial member must not take part in the proceedings on the matter: s 176(3)(b). Moreover, s 176(3)(c) requires that the rules of evidence apply in determining the matter. 24 In my view s 151(2) and s 176 (3) are complementary. Section 151(2) provides that the Commission may be constituted by a judicial member or members when not exercising those functions conferred or imposed on the Commission in Court Session. Section 176(3) complements 151(2) by providing that where a matter arises in proceedings before the Commission (other than the Commission in Court Session) that is within the jurisdiction of the Commission in Court Session, the Commission may continue to deal with the matter as the Commission in Court Session and must be constituted or reconstituted by a judicial member or members. 25 Section 176(1) of the Act enables the President to reconstitute the Commission after the hearing of a matter has commenced if a member becomes unavailable for any reason or ceases to be a member, before the matter is determined. The Commission in Court Session, however, may not be reconstituted unless the parties consent. If I were to sit simultaneously as the Commission and the Commission in Court Session and for some reason became unavailable, a conflict immediately arises in attempting to apply the provisions of s176(1). 26 Section 154 provides that 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. I think s 154, however, is subject to s 176(3) in that in proceedings before the Commission (other than the Commission in Court Session), if the tribunal is to make a binding declaration it must be duly constituted or reconstituted by a judicial member and deal with the matter as the Commission in Court Session: see for example Kellogg (Aust.) Pty Limited v National Union of Workers, New South Wales Branch, unreported, 25 September 1998, Hungerford J. 27 Other provisions of the Act also reinforce the separateness of the powers and functions of the Commission and the Commission in Court Session: Section 151(1) makes it plain that the Commission in Court Session is the Commission constituted by a judicial member or members only; section 152 provides that the Commission is a superior court of record with equivalent status to the Supreme Court and the Land and Environment Court; section 153 reserves certain functions to be exercised only by the Commission in Court Session; section 159(2) provides that if the President of the Commission is not a judicial member, the function of allocating a matter for hearing and determination by a judicial member as the Commission in Court Session is to be exercised by the most senior judicial member. 28 Having regard to these provisions, what I would be concerned about is that the line between exercising my functions as a member of the Commission and exercising my functions as a member of the Commission in Court Session, would become blurred if I were to seek to exercise those functions simultaneously in relation to the same factual matrix. 29 I would be required to act judicially in respect of the unfair contract proceedings but in dealing with the unfair dismissal matter, which arises out of the same set of facts, I would not be so required. I would be required to apply the rules of evidence in one matter and not in the other; different rules relating to costs apply. 30 Parties participating in proceedings before the Commission and the Commission in Court Session are entitled to know with certainty the practice and procedure under which they are to make out their respective cases and what powers the member dealing with the matter is exercising at any given time. To join matters that reside in separate jurisdictions and hear them together may have the effect of creating such confusion that the respondent would be prejudiced. It may also create significant problems if there were to be an appeal. 31 What the applicant is seeking seems to me to be inconsistent with the scheme of the Act. Indeed, I believe I would be acting contrary to the provisions of s 151(2) of the Act if I were to sit simultaneously as the Commission and the Commission in Court Session. 32 Accordingly, I refuse the application. Costs are reserved.

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