Rahman v. Director-General Department of Education and Training [2005] NSWCA 158

Judgment 1 HODGSON JA: On 4 January 2005, the claimant filed a summons in the Common Law Division which purported to seek leave to appeal, and to appeal, from certain decisions of the Industrial Relations Commission (IRC). Those decisions appear to have been made on 3 June 2004 by Commissioner McKenna, on 24 September by Staff J, and on 12 October 2004 and 3 December 2004 by Sams DP, Staff J and Commissioner Fisher. 2 The proceedings in the IRC appear to have arisen out of an alleged termination of the claimant's employment by the Department of Education and Training, and it appears that the claimant applied to the IRC seeking to invoke its unfair dismissals jurisdiction. It appears that on 3 June 2004, Commissioner McKenna dismissed the proceedings on grounds that included the ground that they were brought out of time, and that the claimant advanced no reasons for the IRC accepting the late application. 3 It appears that there was on 24 September 2004 an application to Staff J challenging Commissioner McKenna's decision, and that Staff J considered the claimant would need to apply to the Full Bench. The matter came before the Full Bench on 12 October 2004, when it considered an application to lead further evidence, and it appears that it rejected that application. 4 It appears that there was a further hearing before the Full Bench on 15 October 2004, and a decision given on 3 December 2004. In that decision, it appears that the Full Bench refused leave to appeal from the decision of Commissioner McKenna, and perhaps also dismissed an appeal from that decision. 5 The claimant's summons in this Court came before Howie J in the Common Law Division on either 18 or 21 February 2005, and Howie J made the following direction: No jurisdiction to deal with matter, it relating to a specified tribunal. Matter transferred to the Court of Appeal to be placed in callover list before the Court of Appeal Registrar in the week commencing 28/2/05.

Reserved question of costs. 6 The matter came before Registrar Schell in the Court of Appeal on 28 February 2005, when he gave the following direction: Stood over 11/04/05 2.30pm. Any Amended Summons seeking relief of a prerogative nature to be filed and served by 05/04/05 7 It appears that no Amended Summons was filed, but affidavits were filed and one of those affidavits annexed a Notice of Appeal. When the matter was listed for directions on 11 April 2004, the claimant asserted that he was able to bring an appeal as of right in the Court of Appeal. Ultimately, the Registrar made the following order: If the claimant wishes to bring summons claiming relief pursuant to s.48(2) of Supreme Court Act then such an Amended Summons must be filed and served on or before 06/05/05. In default of which these proceedings are struck out as an abuse of process. 8 I am dealing with a Notice of Motion filed by the claimant in the Court of Appeal on 26 April 2005, which seeks to set aside that order made by Registrar Schell. Before me, the claimant read an affidavit filed on 28 April 2005, which did not set out any evidence in admissible or understandable form, but which was received as an indication of the claimant's understanding of the basis on which he seeks to challenge the IRC decisions. 9 In his submissions, the claimant has sought to support his right to appeal as of right to the Supreme Court, and in particular to the Court of Appeal, by reference to Pt.51 r.8 and Pt.51AA r.5B of the Supreme Court Rules, which refer to appeals as of right; to s.48 of the Supreme Court Act, and in particular to s.48(1)(a)(ii) and s.48(2)(f) which, when read together, have the effect of assigning appeals from the IRC to the Court of Appeal; to the definition appearing in Pt.51 r.2(2); and to the provisions of ss.75A, 101 and 105-107 of the Supreme Court Act. 10 Section 48 does identify various categories of proceedings and assigns proceedings within various categories to the Court of Appeal, as distinct from Divisions of the Court. In doing so, it refers to appeals from specified tribunals, and the IRC is included within the definition of "specified tribunals"; but s.48 does not itself give any jurisdiction to the Supreme Court to hear such appeals. It is concerned only with the division of business which is otherwise before the Court. None of the other provisions of the Supreme Court Act or Rules referred to by the claimant give jurisdiction to the Supreme Court, except for s.101 which gives jurisdiction to hear appeals from the Divisions of the Supreme Court. The other provisions referred to merely deal with what happens and what can be done in relation to appeals that are properly brought, and in some cases, the distinctions between the procedures as between appeals as of right and appeals by leave. 11 Neither the Supreme Court Act nor the Industrial Relations Act gives any jurisdiction to the Supreme Court to hear appeals from the IRC, and in fact there is no such jurisdiction. 12 Accordingly, the claimant's proceedings, purporting to be an appeal from the IRC, do amount to an abuse of process as stated by Registrar Schell. 13 The Supreme Court does have a limited supervisory jurisdiction over the IRC by way of relief in the nature of prerogative relief. However, by reason of s.179 of the Industrial Relations Act, that jurisdiction is extremely limited: see Solution 6 Holdings Ltd. v. IRC [2004] NSWCA 200; 60 NSWLR 558. 14 In his order, Registrar Schell gave the claimant an opportunity to file amended process seeking to invoke that jurisdiction. However, the claimant did not do this, but instead sought a review of Registrar Schell's decision. In my opinion, the claimant has not advanced any reasonable ground for thinking that Registrar Schell's decision was incorrect, nor has he advanced, in my opinion, any reasonable basis for thinking he should, by way of variation of Registrar Schell's order, be given a further opportunity to bring proceedings seeking prerogative relief. The material he has put before the Court does not give any grounds for thinking that this may be a case which could fall within the Supreme Court's very limited jurisdiction over IRC proceedings. 15 I would add that persons are entitled to come before this Court unrepresented, and this Court must seek to give then a fair hearing; and it may be appropriate to give assistance to unrepresented persons in order to perform that duty. But the Court cannot assist litigants in ways inconsistent with its position as an impartial decision-maker: see Reisner v. Bratt [2004] NSWCA 22. 16 This is not, in my opinion, a case where the Court can attempt to formulate a case for the claimant, when the Court does not have material indicating that the claimant does have such a case. 17 On the material before me, the claimant's proceedings are an abuse of process in form and in substance. So, for those reasons, in my opinion, the Notice of Motion should be dismissed, and that is the order I make. [Submissions on costs ensue] 18 Mr. Fernan on behalf of the opponent has applied for costs, and in my opinion, the costs of this motion should follow the event of this motion, so I will order that the claimant pay the costs of the motion. 19 A question has arisen as to whether the effect of what I have ordered is to put an end to the proceedings. 20 It appears that there is a distinction between summary dismissal of proceedings and striking out. The striking out of pleadings is dealt with in Pt.15 r.26 of the Supreme Court Rules, and the note in Richie's Supreme Court Practice at 15.26.1 notes the distinction between striking out and dismissing proceedings. 21 It may be that the Registrar's order striking out does not altogether put an end to the proceedings. I think that in order to achieve clarity about this matter, it would be appropriate to give leave to the claimant, within a limited time, to apply for leave to make an application under Pt.54 of the Rules for prerogative relief, and to make provision, if that application for leave is not brought within a limited time, that the proceedings are altogether dismissed with costs, and that the claimant is to pay any reserved costs. 22 So the orders I make are as follows: 1. Notice of Motion filed 26 April 2005 dismissed. 2. Claimant to pay the opponent's costs of that motion. 3. I grant leave to the claimant to apply to the Court of Appeal for leave to bring in these proceedings an application under Pt.54 of the Supreme Court Rules. This application for leave is to be filed within 21 days, and if this application is not filed within 21 days, then the proceedings are dismissed with costs, and the claimant is also liable to pay any reserved costs.

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