Rail Corporation New South Wales v Brown

SUBMISSIONS BEFORE THE TAB 6The TAB issued a document headed, "Decision on jurisdiction." The facts as recounted above were set out in more detail. The submissions of the parties were summarised: RailCorp submitted that s 13 of the Act was mandatory and required a notice of appeal to be lodged within 21 days and there was no discretion for the Board to accept a notice of appeal filed outside that mandatory time limit. It was conceded that the appellant had lodged his first notice of appeal within time but at the former address of the TAB and that occurred because of incorrect advice provided to him by his union. 7Reference was made to a decision of Acting Commissioner Oakman, where a matter arising in similar circumstances was dealt with in the decision cited as Tenedora v RailCorp (15/11/2010) TAB 597/10. In that case the appellant downloaded a notice of appeal from the Railcorp intranet, however, the information was out-of-date regarding the facsimile number and address of the Secretary. An appeal filed by facsimile and a copy sent by Express Post both failed to be delivered. A further notice of appeal was received by the Secretary outside of the 21-day appeal period. The parties agreed that, had the notice of appeal been forwarded to the correct address it would have been received in time. The TAB found that, in the unique circumstances of the case, both RailCorp and the Secretary were estopped from challenging the time of lodgement of the appeal and, therefore, the TAB had jurisdiction to hear the merits of the appeal. 8RailCorp sought to distinguish that decision because it had provided the incorrect mailing address for the TAB to the appellant and it was held that RailCorp was thereby estopped from raising a question of jurisdiction. The case involving Mr Brown was said to be different because it was not RailCorp that had provided the incorrect address for filing the notice of appeal but rather it was the union that was responsible for this problem. In Mr Brown's case, RailCorp's letter advised him of his appeal rights and provided the correct address for filing a notice of appeal. 9The union submitted that the first notice of appeal was to be accepted by the TAB because it had been filed within time although that had occurred at an incorrect address: that was the fault of the union, not Mr Brown.

DETERMINATION BY TAB 10The TAB held that s 13 of the Act was mandatory in operation and required a notice of appeal to be lodged within 21 days after notice of dismissal had been given to the appellant employee. It was held that this mandatory requirement resulted in the second Notice of Appeal filed in this case being lodged outside the prescribed time limit. The first appeal notice, however, was delivered within the mandatory 21-day period although forwarded to the incorrect address. The TAB then applied the decision of Acting Commissioner Oakman in the Tenedora case citing that, in the present case, as in Tenedora , there were "unique circumstances", especially because RailCorp had accepted that the first notice of appeal would have been lodged within time if it had not been forwarded to the incorrect address. The TAB rejected RailCorp's submission that the approach in Tenedora could be distinguished. In the present case, the use of the incorrect address was not the fault of Mr Brown but was the result of an error committed by a representative at the union office. The TAB therefore accepted that Mr Brown lodged the first notice of appeal within the 21-day statutory time limit and accordingly, had jurisdiction to hear the appeal.

NATURE OF THE APPEAL TO THE COMMISSION 11It is appropriate to initially consider the nature of the appeal from the TAB to the Court. Section 23 of the Act deals with decisions on appeal and provides as follows: (1) A Board may, in relation to an appeal, decide to allow or disallow the appeal or make such other decision with respect to the appeal is it thinks fit. (2) Except as provided by s 23A, the decision of a Board in respect of an appeal is final and is to be given effect to by the Authority against whose decision the appeal is made. 12Section 23A of the Act is in the following terms: A party to a promotion or disciplinary appeal may, subject to sub-section (3), appeal to the Full Bench of the Commission in Court Session against any decision of a Board in the proceedings on a question of law. (2) On an appeal under this section, the Full Bench of the Commission in Court Session may: (a) remit the matter to the Board for determination in accordance with the decision of the Full Bench, or (b) make such other order in relation to the appeal as seems fit. (3) Part 7 of Chapter 4 of the Industrial Relations Act 1996 applies to an appeal against a decision of a Board under this section in the same way as it applies to an appeal against a decision of the Commission under s 197B of that Act. 13It is apparent from the terms of s 23A of the Act that the appeal to the Industrial Court is not at large but is of a confined nature. In Maritime Services Board v Murray (1993) 52 IR 455, the Court of Appeal dealt with an appeal from the Government and Related Employees Appeal Tribunal ("GREAT") to the Supreme Court on a question of law and considered the nature of the appeal conferred by s 54 of the Government and Related Employees Appeal Tribunal Act 1980 ("GREAT Act"). Relevant to that case, s 54 of the Act provided: A person being: (a) an employer against whose decision an appeal is brought; ... may, subject to this Part, appeal to the Supreme Court against any decision of the Tribunal on a question of law. 14In dealing with the issue raised in that matter, Kirby P (with whom Handley JA and Sheller JA agreed), at pp 459-460 stated as follows: It is important to approach the appeal holding in mind the narrow basis upon which this Court has jurisdiction over matters decided by the Tribunal. In Metropolitan Water Sewerage and Drainage Board v Histon and Ors [1982] 2 NSWLR 720 this Court held that a decision on a question of law, within s54 of the Act, arises whenever the Tribunal itself has decided a question of law. The phrase is narrower than other statutory expressions permitting appeals on legal questions to this Court or to like courts. This point was made by Sheller JA in Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 558-559: The right of appeal is not limited to the final dispositive resolution of the appeal before the Tribunal. On the other hand decisions of the Tribunal under s48 to allow or disallow an appeal or to make such other decision with respect to the appeal as it thinks fit are, in the words of subs(3), final and 'shall be given effect to by the employer against whose decision the appeal was brought'. At 725 [in Histon ] Samuels JA pointed to the distinction between an appeal, 'on a question of law, from [a] decision', as provided for by s44(i) of the Administrative Appeals Tribunal Act 1975 and discussed in Director General of Social Services v Chaney (1980) 47 FLR 80; 31 ALR 571 and an appeal, as provided for by s54, against a decision on a question of law. Section 44(1), his Honour said, defined the nature or the ambit of the appeal, restricting it to an appeal on a question of law, whereas as a matter of grammar the words 'on a question of law' in s54 qualified the decision of the Tribunal and not the appeal to this Court. However, if in accordance with the general understanding of the expression 'appeal from a decision', one translates 'decision' to 'order' or 'Judgment' used in the sense of an act affecting adversely the rights claimed by the appellant, the qualification 'on a question of law' is meaningless. It seems to me, therefore, that 'decision' in s54 is used to include an opinion of the Tribunal on a question of law upon which its action or decision, as generally understood, is based. Handley JA and Cripps JA concurred in Sheller JA's judgment. I call attention to this holding so that, from the start, the restricted jurisdiction of this Court, in relation to decisions of the Tribunal, will be understood. Not a few of the submissions for the appellant were addressed to the merits of the case, as it saw them: the unacceptability of having, in a position of responsibility, with auditing functions, a person so morally blind as to seek to justify the misrepresentation and to authorise the letter to the supplier concerning sales tax; the unacceptability of his involving another employee in writing that letter; the unacceptability of the Tribunal's giving less weight to the duty statement on fraud and corruption than the employer did. These may, or may not, be legitimate arguments. But they are arguments addressed to the facts and merits of the case. Except so far as the challenge is one to a decision on a question of law by the Tribunal, this Court is not concerned in the facts and merits. It must leave such considerations to the specialist tribunal which Parliament has created, after the tripartite model, and which, in this instance, acted unanimously. 15In a subsequent case, Totalisator Agency Board (NSW) v Casey and anor (1994) 54 IR 354, Kirby P again drew attention to the limited nature of appeals to the Supreme Court under s 54 of the GREAT Act. The other members of the Court of Appeal (Priestley and Meagher JJA) did not express any opinion about the nature of the appeal and confined their judgments to the other issues raised on appeal. At p 359, Kirby P listed a number of relevant principles as governing the outcome of s 54 appeals and in so doing, stated as follows:

1. Appeals to this Court from the Tribunal are controlled by s 54 of the Act. That section has been the subject of decisions of this Court. It is now clear that it is insufficient to establish that an error of law has occurred in the course of the determination of a hearing before the Tribunal. It is necessary, instead, to show that the Tribunal has, in the terms of s54, made a "decision ... on a question of law" against which the appellant to this Court appeals. See Metropolitan Water Sewerage and Drainage Board v Histon and Ors [1982] 2 NSWLR 720 ; Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 558 (1993) 52 IR 396 at 398; Maritime Services Board v Murray (1993) 52 IR 455 16The issue of the nature of the appeal from GREAT to the Supreme Court was again considered by the Court of Appeal in Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523. Although reference is made to Casey in a judgment cited in the reasons, no member of the Court of Appeal directly analysed the approach in both Casey and Murray although Basten JA said that the decision in Casey appeared to adopt a "more restrictive approach." 17In the course of argument in Lambert it was submitted that the Tribunal had made erroneous decisions on a question of law by treating as relevant mitigating factors when those factors had no relevance for the exercise of the protective function being undertaken by the Tribunal. That submission was challenged as not constituting an attack on a decision made by the Tribunal on a question of law within the provisions of s 54 of the GREAT Act. In addressing the nature of the s 54 appeal, Hodgson JA stated: 24 On the first point, Mr Crawshaw referred to Hutchinson v Roads and Traffic Authority [2001] NSWCA 332, in which Giles JA (with whom Meagher and Powell JJA agreed) said, at [33]: Section 54 of the Act enables an appeal against any decision, whether final or interlocutory, which is a decision on a question of law, and is not limited to a final determination ( Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720 ; Clisdell v Cmr of Police (1993) 31 NSWLR 555; Maritime Services Board v Murray (1993) 52 IR 455). The word "decision" is important. It includes an opinion of the Tribunal on a question of law upon which its determination is based ( Clisdell v Cmr of Police at 559; Commissioner of Police v Donlan (CA, 8 August 1995 unreported)), but it is not enough that an error of law has occurred in the course of a hearing before the Tribunal ( Totalisator Agency Board of New South Wales v Casey at 359; Wijesuriya v Director-General of Conservation and Land Management (1994) 54 IR 384 at 385). In Totalisator Agency Board (NSW) v Casey Kirby P held that when the Tribunal denied procedural fairness by relying on matters not the subject of evidence or argument, it had made an error of law but had not made an error in deciding a question of law (see at 360: the other members of the Court did not think there had been a denial of procedural fairness). 25 Mr Crawshaw also referred to Donlan , in which Clarke JA (with whom Handley JA agreed) said there is an error of law which enables an appellant to appeal against a decision of the Tribunal where the Tribunal has asked itself the wrong question. Mr Crawshaw submitted that, even if the Tribunal did have regard to irrelevant factors, this did not amount to asking itself the wrong question, and did not amount to an opinion on a question of law on which its decision was based. 26 Mr Crawshaw also submitted that although the factors set out in the third, fifth and sixth sentences of para [36] of the Tribunal's judgment did not ameliorate the seriousness of Mr Lambert's conduct in 2006, they could ameliorate the seriousness of his lying to the investigator, which was being relied on by DADHC; and thus they could be relevant to what was appropriate to protect the public interest. 27 Mr Crawshaw also submitted that it was not irrelevant to the exercise of discretion under s 48 of the GREAT Act to take into account personal circumstances of the employee. Written submissions on behalf of Mr Lambert referred to Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129 at [28] - [33], which contains a criticism of a sharp distinction between punitive and protective proceedings. 28 In my opinion, there is here a challenge to a decision on a question of law. It is not necessary that the question of law be explicitly stated and decided by the Tribunal. It is sufficient if a decision of the Tribunal is such that a resolution of a question of law is manifested by it: see Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277 at [3] - [4], and Douglas v NSW Land and Housing Corporation [2008] NSWCA 315 at [17] - [18]. Here, the Tribunal's identification of mitigating circumstance in para [36] manifested a resolution of the question of law whether such circumstances were relevant to the decision it should make in discharge of its jurisdiction. Tobias JA generally agreed with the reasons of Hodgson JA but specifically raised a quite separate matter as to the scope of the s 54 appeal to the Supreme Court. 18Basten JA considered at some length the scope of the statutory appeal provided by s 54: 58 The extraordinary growth of tribunals in this country over the past 30 years has seen an equivalent growth in the statutory appeal provisions with respect to decisions of those tribunals. In many cases such statutory appeals are limited in some way to questions or points of law. The variations achieved by Parliamentary counsel, even within New South Wales, in expressing such a limited right of appeal must almost have exhausted the range of possibilities. The variations give rise to questions of construction. For example, is the grant of an appeal "on a question of law, from a decision of the Tribunal" different from an appeal "against any decision of the Tribunal on a question of law"? (The former language is to be found in s44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"); the latter is the language of the GREAT Act, s 54 set out above.) The former language is more common than the latter: see the discussion in the judgment of Allsop P in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [41]-[46].) The Federal Court (Bowen CJ, Fisher and Lockhart JJ) stated in relation to s 44(1) of the AAT Act, in Brown v Repatriation Commission (1985) 7 FCR 302 at 304: The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it. 59 The language in Brown made the point that an appeal on a question of law was narrower than an appeal "involving a question of law", being the language of the Income Tax Assessment Act 1936 (Cth), s 196 where the subject-matter of the appeal is not limited to the question of law: see Ruhamah Property Co Ltd v Federal Commissioner of Taxation [1928] HCA 22; 41 CLR 148 at 151 and Krew v Commissioner of Taxation (1971) 45 ALJR 324, 325-326 (Walsh J). As noted in B & L Linings at [47], that contrast was expressly identified by Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 at 178; see also Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [56] (McHugh and Gummow JJ). 60 An appeal on a question of law may bear comparison with other forms of judicial review. It was in relation to a provision of that kind that the High Court (Gaudron, Gummow and Hayne and Callinan JJ) stated in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [15]: Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. ... [I]t is important to recognise that the essential character of s 148 is that it provides for the institution of proceedings in the Supreme Court, by leave, in which the legal correctness of what the Tribunal has done can be challenged. 61 Thus a statutory right of appeal limited to questions of law may be seen to reflect the broad dichotomy drawn by principles of judicial review, namely that the administrative decision-maker or tribunal is to be the final adjudicator of the facts and the merits of the case, so long as he or she acted within the limits prescribed by law (which may involve a range of procedural and substantive constraints: see Craig v South Australia [1995] HCA 58; 184 CLR 163 at 175-176 and Applicant S20/2002 at [53]-[58] (McHugh and Gummow JJ)). Whether an appeal from 'a decision on a question of law' was intended to have similar effect is no longer a question which can be asked. It is clear from the authorities that it has a more limited operation. Given the linguistic distinction, such a differential operation is clearly justifiable and perhaps inevitable. 62 It is necessary, therefore, to note that a number of quite distinct questions have arisen in the course of construing provisions such as s 54, an incomplete list of which might read as follows: (a) may an appeal be brought from an interlocutory decision of the tribunal, or only from a final decision? (b) must the tribunal itself identify a question of law requiring a decision, or can the question be inferred from the relevant decision of the tribunal? (c) are there legal errors which may be identified in the approach taken by the tribunal to its task which do not fall within the statutory right of appeal, such as: (i) a failure to accord one party procedural fairness; (ii) failing to apply legal criteria correctly identified; (iii)misconceiving the scope of relevant and irrelevant considerations; (iv) exercising a discretion in a manifestly unreasonable manner, and (v) failing to give reasons for its decision? (d) is the subject matter of the appeal limited to the question of law? (e) are the powers of the appellate court limited to a remittal to the tribunal in the case of material legal error? 63 As a number of the cases discussed in B & L Linings demonstrate, the answers to these questions may require consideration of the broader context in which the statutory right of appeal is conferred: see also authorities referred to in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [150] and [159]. For example, this may include reference to the power conferred on the court hearing the appeal. It may also require reference to procedural provisions which give colour to the context. Thus, in relation to an appeal under the GREAT Act, s 55 provides that the appeal shall be made "within 21 days after the date of the Tribunal's decision on the question of law the subject of the appeal ... ". Such a provision might be thought to give weight to the view that the decision was either a final decision or one separately identified by the Tribunal as involving a question of law. However, although there is some vacillation in the jurisprudence in this Court on the question, it has now been broadly accepted that, in the words of Sheller JA in Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 559C (Handley and Cripps JJA agreeing): It seems to me, therefore, that 'decision' in s 54 is used to include an opinion of the Tribunal on a question of law upon which its action or decision, as generally understood, is based. 64 The reference by Sheller JA to an action or decision "as generally understood" was a reference to the view that an appeal from a decision is a challenge to a final or operative decision or order, being an act adversely affecting rights claimed by the appellant. The idea that a decision may be based on an answer to a particular question of law does not necessarily mean that the tribunal itself must have expressly so identified the question. 65 In Totalisator Agency Board (NSW) v Casey (1994) 54 IR 354 Kirby P took what appears to have been a restrictive view of the subject matter of an appeal under s 54 of the GREAT Act, as determined by Clisdell and earlier authorities: at 359. It was not, however, a matter on which the other members of the Court (Priestley and Meagher JJA) commented as they found the only possible basis of challenge was a claim of procedural unfairness and that had not been made out on the facts. 66 Some five weeks later, the Court handed down judgment in Wijesuriya v Director-General, Department of Conservation and Land Management (1994) 54 IR 384. The Court was constituted by Kirby P, Clarke and Handley JJA. Relevantly for present purposes, the Court was unanimous as to the appropriate orders, but each member of the Court gave separate reasons. In the course of his reasons, Kirby P stated at 385: The appeal to this Court from the Tribunal is limited to an appeal on matters of law. Moreover, the appeal must be, as the Act provides, 'against the decision of the Tribunal on a question of law'. That phrase has been given a narrow construction in this Court. Effectively, it has been held that the Tribunal must identify a question of law and decide it as such. See Metropolitan Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720 at 724; Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 558; 52 IR 395 at 397; and Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354. ... Thus, it is not enough that a question of law may arise in the course of the Tribunal's deliberations and its determination of an appeal. It is necessary that the Tribunal should have made a decision on a question of law which the appellant wishes to challenge in this Court. 67 The other members of the Court confined themselves to upholding the appeal on the basis that the Tribunal had asked itself a legally wrong question. 68 The Court returned to the construction of s 54 in August 1995 in Commissioner of Police v Donlan [1995] NSWCA 468. In that case, Clarke JA, with whom Handley JA agreed, noted that Samuels JA in Histon had concluded that a decision was not limited to the final or operative order of the Tribunal and included "any decision of the Tribunal which is a decision on a question of law". His Honour identified Hutley JA as in agreement with that view: at [11]. His Honour then noted the submission that "an appeal only lies when the Tribunal expressly refers to a question of law which it proceeds to determine". His Honour identified the high point of that submission as the judgment of Kirby P in Wijesuriya . After reference to the reasons of Handley JA in that case and the judgment of Sheller JA in Clisdell , Clarke JA concluded at [14]: Accordingly, I would reject the submission that it is necessary for GREAT expressly to identify a point of law and then furnish its answer to that point before an appeal will lie under s 54. In my opinion the section, properly construed, enables an appellant to appeal against the decision of GREAT whenever an error of law, as explained in Azzopardi , is raised. That will occur, as I have previously indicated, where the Tribunal has asked itself the wrong question. 69 The reference in Donlan to Azzopardi was a reference to the reasoning of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156: A finding of fact ... may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself, i.e., has defined otherwise than in accordance with law the question of fact which he has to answer. 70 The approach accepted in Donlan is consistent with that adopted in relation to other provisions having structural similarity to s 54. Thus, under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) a right of appeal is conferred where the Tribunal "decides a question with respect to a matter of law". The structural similarity is that the phrase "question of law" qualifies the decision of the Tribunal and not the appeal: see also, with respect to s 57(1) of the Land and Environment Court Act 1979 (NSW), ISPT Pty Ltd v Valuer General [2009] NSWCA 31, at [3] (Allsop P). In that context, the Court held in Grygiel v Baine [2005] NSWCA 218 at [29], after referring to authority that an appeal was permitted from interlocutory decisions of the Tribunal: Further, as the judgment of Bryson JA in Kalokerinos [ v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [38]-[58]] demonstrates, the terms of s 67(1) require that an appellant must identify with precision a decision of the Tribunal with respect to a matter of law, in order to invoke the jurisdiction of the Court. It is not necessary that the matter of law be separately identified by the Tribunal and expressly addressed as such: it is sufficient that the Tribunal reaches a conclusion with respect to some matter which requires for its determination the identification of a relevant matter of law and that error is alleged with respect to that matter of law. However, as noted by Handley JA ... in Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [61]: It does seem clear, on any view, that the section prevents a new point of law being taken for the first time on appeal. 71 It seems well-established that this approach is the appropriate approach to be adopted in respect of the appeal available under s 54. That approach is relevant to the determination of the present appeal. The issue raised during argument was whether questions as to errors with respect to relevant and irrelevant considerations fell within the terms of the statutory appeal. Because such questions involve assessment of the proper scope of the Tribunal's power and jurisdiction, there is an implicit decision on a question of law with respect to any consideration which is deemed relevant or irrelevant. Such a conclusion involves the view that a consideration is mandatory (relevant) or prohibited (irrelevant) as a matter of law. It follows that it was not necessary for the Director-General to invoke the judicial review jurisdiction of this Court in order to present such arguments. ... 74 In the course of his judgment in Totalisator Agency Board v Casey , Kirby P expressed the view that a failure to accord procedural fairness involved an error of law, but not one coming within the statutory appeal provisions as identified in Clisdell : at 359. 75 There is something to be said for the view that, where a tribunal has exceeded the bounds of its legal authority by failing to accord procedural fairness, such an error does not constitute a decision of the tribunal on a question of law: see Seltsam at [159] and, in relation to a failure to give reasons, Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [130]. 19The appeal to the Industrial Court pursuant to s 23A of the TAB Act is in almost identical terms to the appeal to the Supreme Court under s 54 of the GREAT Act. This is not surprising as both pieces of legislation deal with promotion and disciplinary appeal rights of public sector employees. The appeal provided by s 23A is, therefore, to be distinguished from the type of appeal available under s 142N of the District Court Act 1973 ("DC Act") as highlighted in the judgment of Commissioner of Police v Dalziel [2011] NSWCA 290. In that case, however, the Court of Appeal noted the distinction between a question of law and a question of fact in circumstances where s 142N provided to an aggrieved party an appeal "in point of law." The judgment of Handley AJA in particular focused upon the distinction between errors of law and errors of fact noting that the central issue in the appeal was whether the conclusions of the judge below evidenced any error "in point of law" - a more general right of appeal. Although the DC Act itself confined the right of appeal, as acknowledged by Basten JA at [17], that is not the same type of appeal as is available under s 23A of the TAB Act. 20An appeal under s 23A is not an exercise involving a search for any errors in point of law that arise in the proceedings but requires attention to a more precise issue, requiring the identification of a decision of the TAB in the proceedings "on a question of law." In this respect the judgment of Basten JA in Lambert at [70] is of particular relevance where his Honour quotes from the judgment of the Court in Grygiel v Baine [2005] NSWCA 218 at [29] citing the judgment of Bryson JA in Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [38]-[58] that the terms of the Act there under consideration required "that an appellant must identify with precision a decision of the Tribunal with respect to a matter of law, in order to invoke the jurisdiction of the Court." We would respectfully agree with that statement, as relevant to the operation of s 23A. 21The cases considered above dealing with provisions similar to s 23A provide the following guidance in identifying the scope of the appeal available under the Act: (a) an appeal from a decision on a question of law is a more limited appeal than that available on a question of law or involving a question of law; (b) it is not sufficient, therefore, to merely establish that an error of law has occurred in the course of the appeal; (c) while it must be shown that the Tribunal has made a decision on a question of law that is challenged on appeal, it is not necessary for the Tribunal to have, itself, expressly identified that question. It will be sufficient if the appeal identifies any decision of the Tribunal that is a decision on a question of law. Thus, where the Tribunal reaches a conclusion with respect to some matter that requires for its determination the identification of a relevant matter of law and error is alleged with respect to that matter of law, the jurisdiction of this Court under s 23A is invoked; (d) the appellant, nevertheless, is required to identify with some precision the decision of the Tribunal on a matter of law in order to invoke the jurisdiction of the Court under s 23A; (e) where the questions raised on appeal involve an assessment of the proper scope of the Tribunal's power and jurisdiction, there is an implied decision on a question of law.

DID THE TAB MAKE A DECISION ON A QUESTION OF LAW? 22The respondent to this Appeal has submitted that the Application for Leave to Appeal and Appeal fails to identify any decision of the TAB in the proceedings on a question of law as required by s 23A(1). The Application for Leave to Appeal and Appeal stated that the matters appealed against were, "the whole of the decision to the extent that it found that the Board had jurisdiction to hear the appellant's (Mr Brown's) Appeal." The questions raised by the appeal were stated as follows: RailCorp says that the following questions of law arise on the appeal:

1. Whether, for the purposes of s 13 of the Transport Appeal Board's Act 1980, the appellant below (Mr Brown) lodged an appeal with the secretary within 21 days after notice in writing of the decision to be appealed against was given to him.
2. Whether the Board had jurisdiction to hear the appellant's (Mr Brown's): In written and oral submissions, RailCorp identified the question of law as the TAB's decision that it had jurisdiction to hear the appeal because the appeal was lodged with the Secretary within 21 days of Mr Brown being notified of his dismissal. 23It can immediately be observed that some aspects of the a pplication for Leave to Appeal and Appeal reflect pleadings that might more appropriately relate to general appeals available under Ch 4, Pt 7 of the Industrial Relations Act 1996 ("IR Act"). 24The two questions specified in the Application for Leave to Appeal and Appeal are introduced by the words - "the questions raised by the Appeal are." Again, this terminology may be more appropriate to appeals generally brought under the IR Act. Counsel for RailCorp during oral submissions conceded that the decision on a question of law could be formulated in several ways. The Court accepts that, in substance, the Application identifies the decision of the TAB as being that it had jurisdiction to hear the Appeal because the Notice of Appeal was lodged with the Secretary within 21 days of notification of dismissal: that decision is challenged as being erroneous in law. 25While it is not pellucidly apparent how the TAB reached the decision, in substance it was decided that, although the time limit appearing in s 13 might normally be regarded as mandatory, there were situations such as those appearing from the circumstances in the Tenedora case, where appeals might be dealt with even if that time limit was not strictly complied with. Notwithstanding the different facts as to the entity responsible for the misinformation being provided as to the address of the TAB Secretary and the application of the principle of estoppel, the TAB determined that Mr Brown's case fell into the same category as the Tenedora case. 26As in Tendora (a decision accepted by RailCorp in the proceedings before the TAB), the TAB did not explain how s 13 might be mandatory in its operation as to the time limit for the filing of the notice of appeal yet notices of appeal outside that period could be properly received and acted upon. That is the crucial decision which, in substance, was made by the TAB. That decision, applying perhaps the broader approach adopted in Lambert, might permit an appeal within the provisions of s 23A on the basis that the TAB had made a decision that s 13 was mandatory and failed to then treat the time limit as mandatory and requiring strict compliance (or alternatively the TAB, in substance, determined that the time limit within s 13 was not mandatory and that substantial compliance would suffice). The difficulty of identifying, with some precision, what was the decision of the TAB, has consequences for formulating an appeal under s 23A. It is in those circumstances that the Court is prepared to proceed on the basis of the substance of the matter, that is, the jurisdiction of the TAB to hear the matter having regard to the provisions of s 13 of the Act. 27As earlier noted, the respondent has submitted that the Application before this Court has not identified a decision made by the TAB on a question of law but that the Application raises merely a question of fact, namely, whether Mr Brown's Notice of Appeal was "lodged" within the 21 days required by s 13 of the Act? As noted in Dalziel , Handley JA, by reference to Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, stated that the question of whether there was any evidence of a particular fact is a question of law. Where there was evidence of the fact, the question whether that evidence ought to be accepted wholly or partly or accepted as sufficient to establish the fact is itself a question of fact and not a question of law. A finding of fact may reveal an error of law if the trial judge misdirected himself, for example, by defining otherwise than in accordance with law, the question of fact he has to answer. That possibility exists in relation to ultimate findings of fact but not with respect to primary findings of fact such as whether a person suffered injury on a particular date. 28Questions as to whether Mr Brown's notice of appeal was "lodged" with the Secretary of the TAB and whether that lodgement took place within "21 days" of being notified of the decision to terminate, might, on their face, appear to be questions of fact only. Findings in relation to these two matters, however, go to the question of the jurisdiction of the TAB to entertain an appeal. They are, in that sense, jurisdictional facts and jurisdictional facts, speaking generally, are open to judicial review. They are distinguished from errors made in relation to matters of merit or mere errors of fact that are usually treated as errors made within jurisdiction by an administrative decision-maker. In Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 at 63-64; [1999] NSWCA 8, Spigelman CJ provided guidance to assist in identifying jurisdictional facts: 37 The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See e.g. Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122, 125). The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact ('objectivity') and that the legislature intends that the absence or presence of the fact will invalidate action under the statute ("essentiality'). ( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [91]-[93]). ...
3. Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes "jurisdictional fact" as some kind of "doctrine" is, in my opinion, misconceived. The appellation "jurisdictional fact" is a convenient way of expressing a conclusion - the result of a process of statutory construction . 40 Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a Court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts. 29While the above analysis was conducted in the context of a wider process of judicial review, the analysis has relevance for present purposes. In Lambert , Basten JA [60] noted that an appeal on a question of law may bear comparison with other forms of judicial review. The issue of whether or not an appeal had been "lodged" as required by s 13, is an example of whether a finding of fact may also involve a question of law. The requirement to lodge the appeal with the Secretary of the TAB involves the act of bringing or sending the document to a particular place or to deposit the document in that place. The first notice of appeal was not, at any time, in the possession of the Secretary of the TAB by being sent or forwarded to the Registry office at its operating address. It cannot be doubted that the lodging of a notice of appeal is an essential step in the appeal process. Applying the approach in Azzopardi , whether there is any evidence of a particular fact, is a question of law: here, there was no evidence of lodgement and, therefore, the TAB fell into error when it decided the legal question that the first notice of appeal had been lodged with the Secretary of the TAB. The same analysis applies to the finding that the appeal was also lodged within 21 days - it was never received. 30In holding that the notice of appeal forwarded by Mr Brown to the incorrect address was to be taken as lodged with the Secretary of the TAB within 21 days was a decision by the TAB in purported application of the approach taken in Tenedora . The facts in Tenedora were materially different to those arising in relation to Mr Brown. In that case it was the RailCorp intranet site that contained the incorrect address of the Secretary in providing a draft form of notice of appeal. The attempts to lodge an appeal at that address by facsimile and Express Post failed and a second notice of appeal was sent to the correct address outside the 21-day time limit. The TAB applied the broad principle of estoppel as prohibiting the employer from relying on the late lodgement of the second appeal and therefore treated the first notice of appeal as being lodged. Accepting, without determining for ourselves, that the principle of estoppel was applicable in those circumstances, the same approach is not available to Mr Brown against RailCorp - the misleading information as to the address of the Secretary of the TAB was not provided by RailCorp as the employer but was provided by his industrial advisor, his union. 31Although the above discussion has proceeded on the basis of separately considering the lodgement and the 21-day period, they are of course inextricably linked - the lodgement of the notice of appeal pursuant to s 13, in the way described above, requires that lodgement to take place within 21 days. Thus, the Appeal to this Court brought under s 23A of the Act, appears to raise the question of "lodging" the notice of appeal within 21 days in the context of a jurisdictional issue, that is, whether or not a notice of appeal lodged outside that period deprives the TAB of jurisdiction to hear that appeal. 32The judgment of the Court of Appeal in Lambert and in particular the judgment of Basten JA at [71] accepts that, where questions involve an assessment of the proper scope of the Tribunal's power and jurisdiction, "there is an implicit decision on a question of law with respect to any consideration which is deemed relevant or irrelevant. " 33As the headnote in Lambert makes clear, the other two members of the Court of Appeal stated that it was not necessary that the question of law be explicitly stated and decided by the Tribunal but it was sufficient if a decision of the Tribunal is such that a resolution of a question of law is manifested by it. This is such a case. 34Applying the approach in Lambert and the cases mentioned therein, the TAB made a decision on a question of law, namely, whether there was jurisdiction to hear and determine the appeal. That decision by the TAB involved an assessment of the proper scope of the Tribunal's power and jurisdiction. As indicated earlier, it appears to us that the question thereby raised by the Application in this Court (raising as it does the jurisdiction of the TAB to hear Mr Brown's appeal ) is also properly identified as being whether or not s 13 is "mandatory" in its operation as to the 21-day period. As will be discussed later, the term "mandatory" has long been regarded as outdated and likely to cause confusion in the statutory construction exercise but it is the term used by the parties both before the TAB and before the Court on this Application . 35As discussed above, the Application filed on behalf of RailCorp in this Court raised directly the jurisdiction of the TAB to hear the appeal from Mr Brown having regard to the terms of s 13. Before the TAB, RailCorp submitted that the time limit of 21 days contained in s 13 was "mandatory." The issues of the lodgement of the appeal and the mandatory nature of s 13 were intertwined issues that called into question the jurisdiction of the TAB to hear Mr Brown's appeal. Both parties in this Court also addressed the "mandatory" nature of the 21-day time limit. The Court is satisfied, therefore, that there has been appropriately identified a decision of the TAB on a question of law and that the Application for Leave to Appeal and Appeal has identified that same decision in its attack on the jurisdiction of the TAB to entertain Mr Brown's appeal. CONSTRUCTION OF s 13 36The Court has earlier indicated that, in relation to the operation of s 13 and the jurisdiction of the TAB to hear Mr Brown's appeal, the TAB, in holding that the first appeal was lodged with the Secretary of the TAB within 21 days of being notified of the relevant decision affecting Mr Brown, was in error. There was no evidence that the first notice of appeal came into the possession of the Secretary to the TAB or that it was delivered to any relevant premises operated by the TAB. The evidence was to the contrary, namely, that the first notice of appeal was delivered to a wrong address and returned to Mr Brown. At no stage did that document come into the hands of the Secretary to the TAB, at least within the 21 days specified in s 13. A conclusion that such a finding was not open to the TAB does not, however, dispose of the Appeal in this Court. It remains to be determined what is the proper operation of s 13 and the 21-day period for lodging an appeal to the TAB. 37It is appropriate at this point to deal with a proper approach to provisions argued by RailCorp as being "mandatory" rather than "directory", using the old terminology. In Project Blue Sky Inc and ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, the High Court spoke of the need to avoid these terms in the future and spoke of the proper approach to be taken to statutory provisions that lay down a procedure and what should be the consequences if that procedure is not followed. Thus, in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ at [93] it was stated: [93] In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood ... in criticising the continued use of the "elusive distinction between directory and mandatory requirements" ... and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. ... That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". ...(citations excluded). That is the approach that directs the Court in the task of construing the provisions of s 13 of the Act. 38Before this Court, RailCorp has argued that s 13 is "mandatory" due to the use of the word "shall" and the fact that no prescription was made permitting the time limit to be extended for any reason: that approach is contrary to the process of construction now required by Project Blue Sky . The error of that approach is highlighted by the fact that the word "shall" is well known for what has been described as its "chameleon-like quality." In Re David [1947] HCA 53; (1947) 75 CLR 415, the High Court considered the scope of the word "shall" in the context of The Legal Practitioners Act 1989 whereby a person approved for admission as a barrister by the Admission Board "shall" be admitted to practice at the Bar. Dealing with the meaning of "shall" in that provision, Starke J at 418 stated: But the word "shall" does not always impose an absolute and imperative duty to do or omit the act prescribed. The word is facultative: it confers a faculty or power. ... The application, however, of the section depends on the content of the power, the nature and the purpose of the thing required to be done. The word "shall" cannot be construed without reference to its context. Dixon J at 424 stated: It would be absurd to lay hold of the word "shall" and interpret the provision as intending to place upon the Court the imperative duty of admitting to the Bar, without regard to any other condition, a person who showed that the Board approved him as a fit and proper person. Williams J, at 428, noted: Prima facie the word "shall" is used in an Act in a mandatory sense, but in many cases it has been held to be directory. 39The applicant in the present matter relied upon decisions using similar language to s 13 of the Act in the GREAT Act. In Secretary, Department of Health (NSW) v Harvey (1990) 34 IR 58, the Court of Appeal was dealing with a decision of GREAT overruling an objection to jurisdiction. Although a major issue in the case was whether an employer was under an implied statutory obligation to notify an employee of a right of appeal to the Tribunal, the Court of Appeal also made observations about the time limitation provided by the GREAT Act. Section 29(1) of the GREAT Act required an appellant to lodge a notice of appeal with the Tribunal within 28 days after being notified in writing of the decision against which the appeal was to be made. The court rejected the proposition relating to an implied statutory obligation on the employer to notify the employee of their appeal rights. In the course of dealing with that argument, Handley JA noted that the statutory period of 28 days expired without the lodging of a notice of appeal and therefore the appeal was lodged out-of-time. His Honour stated that the Act did not provide for the time for appeal to be extended and apparently gave weight to the decision of the Tribunal holding that the time limit set by s 29(2) was mandatory and went to the jurisdiction of the Tribunal to hear the appeal. That approach was supported by the decision of the Court of Appeal in Patterson v The Public Service Board [1984] 1 NSWLR 237; (1984) 6 IR 468 where it was held that the time limit fixed by s 55 of the GREAT Act for appealing to the Court of Appeal from a decision of the Tribunal was mandatory and there was no power to extend it. 40During argument before this Court, some reliance was placed upon the judgment of Meagher JA in Harvey where, in agreeing with Handley JA, his Honour said: This case is a simple one, the Act means what it says, and, what is more important, it does not mean what it does not say. That comment appears to be directed to the primary proposition put to the Court, namely, that there was an implied statutory obligation for the employer to notify the employee of the right of appeal to the Tribunal. In any event, that approach to statutory construction is not in accord with the approach laid down in Project Blue Sky. 41The decision of the Court of Appeal in Patterson dealt with a similarly worded provision to s 29 of the GREAT Act but dealing with appeals from the Tribunal to the Supreme Court pursuant to s 55 of that Act. There was a preliminary objection that the court had no jurisdiction to extend the time for the appeal from the Tribunal to the court, it being argued that s 55(1) was mandatory and there was no power to extend the 21-day period. Again, the argument before the Court of Appeal was not primarily directed to the mandatory nature of s 55 (which appeared to be accepted) but focused upon the interaction of the GREAT Act and the Supreme Court Act 1970 and the longer period available for appeals provided by the Supreme Court Act . At p 240, Moffitt P observed that there was no provision of the GREAT Act or any policy provision justifying the terms of s 55(1) not being construed as mandatory. In relation to policy, the provision set a fixed time to appeal without making a provision for extension. It was said that this was the apparent policy, at least in the case of appeals in the Tribunal as appeared from the operation of s 26 and s 29. Having regard to Government administration, a fixed time for appeal provided certainty for the organisation and allowed the implementation of administrative decisions. 42The decisions in Harvey and Patterson did not involve a direct challenge to the proposition that appeal limits under the GREAT Act were not mandatory but could be satisfied by substantial compliance. In both cases, the observations as to the mandatory nature of appeal limits in the GREAT Act were made without detailed analysis of the Act, as it was unnecessary to do so in light of the approach of the parties. While these decisions of the Court of Appeal in relation to a similar provision arising under the GREAT Act may not be strictly binding on this Court in relation to the operation of the TAB Act, nevertheless, those obiter comments would normally be treated as persuasive, unless other relevant considerations lead to a different conclusion. 43The last in this line of cases, Matkevich v New South Wales Technical & Further Education Commission (1995) 36 NSWLR 718; ( 1995) 65 IR 46 has received comparatively little attention. In that case the Court of Appeal was dealing with an appeal from GREAT pursuant to the provisions of s 55 of the GREAT Act. Section 55(1) stated that an appeal shall be made within 21 days after the date of the Tribunal's decision on the question of law, the subject of the appeal, and shall be made in accordance with the Rules of the Supreme Court while sub-section (2) stated that the appellant, within the period of 21 days referred to in sub-section (1), was to serve a copy of the process originating the appeal on the Tribunal and each other person referred to in s 54. On the facts before the Court of Appeal the appeal from GREAT had been filed within 21 days as required by s 55(1) but service had not been effected within the 21 days referred to in sub-section (2). 44The respondent challenged the competency of the appeal arguing that failure to effect service within the time limit set by s 55(2) resulted in there being no appeal before the court. The court was divided on this issue with the majority (Priestley and Powell JJA) holding that, where s 55(1) had been complied with and the appeal was on foot, the court had power under the Supreme Court Rules to grant an extension of time in order to comply with the limits stipulated in s 55(2). In so holding their Honours distinguished the earlier decision of the court in Patterson . Kirby P was in dissent, although recognising the utility of the capacity to allow minor issues of non-compliance where no real prejudice was suffered by the respondent. His Honour, nevertheless, felt obliged to follow the decision in Patterson , noting that decision had been applied on other occasions. 45Priestley JA (with whom Powell JA concurred) stated that the issue before the court tested the court's understanding of one of its past decisions and the appropriate methods of statutory construction: it put before the court the everyday problem of deciding whether a precedent applicable to a particular situation should be held to be equally applicable to a similar but not identical situation. In this situation His Honour noted: When such questions arise in regard to the interpretation of statutes, there is usually some room for a court to move either way in its decision. Which way a court will move depend upon a combination of matters. One of these is the clarity of the language to be interpreted, understood in its context. Another is the purpose of the provision if that can be found from the language of the statute, again understood in its context. An understanding of the consequences of differing interpretations will sometimes cast light on the meaning and purpose of the words in their statutory setting. A binding authority directly in point must be followed . 46Priestley JA rejected the contention that followed from the decision in Patterson (dealing with non-compliance in relation to s 55(1)), that the same reasoning and result would follow in relation to a breach of the time limit for service provided for in s 55(2). His Honour noted that s 56(1) required the Supreme Court to hear and determine the question of law arising on the appeal under s 54 of the GREAT Act and that appeal, using the language of s 55(1), is one made within 21 days after the date of the Tribunal's decision. The making of the appeal depended in terms on compliance with s 55(1) not both it and s 55(2). His Honour continued: In my view the preferable reading of s 55 is that the only condition precedent it imposes to the invocation of the court's jurisdiction under Pt 5 is the making of the appeal under s 54 within twenty-one days after the date of the Tribunal's decision by the filing of a notice of appeal within that time. Once that has been done there is a live appeal. Once that appeal is on foot the ordinary incidents and procedures of the Supreme Court including its relevant rules are applicable to the appeal. This view is supported by case law: Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554 at 559; Houssein v Under Secretary, Department of Industrial Relations and Technology NSW (1982) 148 CLR 88 at 96, and is supported in the present instance by the concluding words in s 55(1). His Honour noted that, in Patterson, the concluding words in s 55(1) were held to be inapplicable to a notice of appeal not filed within the specified period of 21 days and in that case, no appeal was ever "made" within the time set out in the section. However, in the present case, the Appeal was on foot and there was no impediment to the subsequent application of the Rules of the Supreme Court. Thus, the decision in Patterson did not govern the present case and the appeal was valid. 47His Honour, who was a member of the Court of Appeal that decided Patterson , noted that in that case the 21-day period appearing in s 55(1) was seen as a deliberate departure from the larger period of 28 days allowable under the Supreme Court Rules and that was indicative of the legislative intent that the time within which to appeal was limited to 21 days and not longer. The view of Moffitt P provided a further reason for construing s 55(1) in that way in that it led to certainty in the appointment of officers but that consideration had less force than in the present case because the appeal was already on foot and there was certainty as to the need to deal with that appeal. His Honour accepted that, while s 55(2) was designed to place the onus of service upon the appellant and that its provisions should be complied with, it was equally obvious that the same "draconic consequences" should not follow from failure to observe its requirements as follow from failure to observe the condition precedent imposed by s 55(1). His Honour concluded: The difference in interpretation of the two subsections flows, notwithstanding the similarity of their language, from the difference between the origination of an appeal by the filing of the necessary originating process and the serving of a copy of that process. The filing gets the appeal going, the service is an ancillary and important step towards having the appeal heard. 48The dissenting judgment of Kirby P is of significance in several respects and importantly outlines the usual and practical approach of courts and how there had been a call for the legislature to ameliorate the harshness of the decision in Patterson but without any legislative response. Essentially, his Honour's view was that, despite the inconvenience and harshness of strict compliance with the appeal time limit, the decision in Patterson (that had been applied in other cases) should continue to govern the situation. In commentary on the submissions, his Honour stated: The reason why this argument is unattractive is not difficult to see. There was no suggestion that any prejudice was suffered by the claimant by reason of the suggested delay of three days in the service of the appeal duly filed, that is, made, within time. Were this matter to be dealt with under the rules of the Supreme Court, there would be no doubt that the Court, in the absence of some undisclosed and serious prejudice, would have experienced little difficulty in providing an extension of time and curing the default of service in the circumstances. ... In the modern remit of the procedures of courts such as this, such a result seems unpalatable, even astonishing. But, according to the claimant, that is what the faithful application of the Court's holding in Patterson and James requires. ... Uninstructed by authority, one might have though that the reference in the closing words of s 55(1) to the appeal being made "in accordance with the rules of the Supreme Court", would have introduced into the provisions of s 55 the beneficial discretions which are allowed by the rules of this Court, including for the extension of time where good reason is shown to warrant relieving a party from a failure strictly to conform to a specified time-limit. The modern remit, to which I have earlier referred, has been developed out of recognition by the courts that a variety of slips, of varying degrees of culpability can occasion a failure to conform strictly to time-limits. Whilst parliament provided for a time-limit, it also provided for the making of an appeal in accordance with the rules of the Supreme Court. The latter provision, one might have expected, would permit that flexibility to the application of the primary time-limit which the ordinary practice of the Supreme Court observes. Not only does that appear to be the purpose of incorporating express reference to the rules of the Supreme Court. It would also conform to the fact that it is the Supreme Court which is the recipient of the appeal. Normally, therefore, one would expect that its practice would control such questions as time-limits and relief from breach of them: (cf Electric Light and Power Supply Corporation ... Houssein.) This Court has held on many occasions that rules of court themselves, including those providing for time for the institution of an appeal, are the servants and not the masters of the Court. They exist in the context of an institution whose general purpose is the achievement of justice according to law, not the rigid application of rules. In the context of beneficial legislation such as the Act, one might have expected the adoption of a broad and purposive construction of the statute. Such an approach, to privileges less pressing and important than those of appeals on questions of law in an employment case, have certainly since been adopted by this Court without too much anxiety or undue hesitation: see, eg, Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497. But it was not to be so in the case of appeals to the Supreme Court from the Tribunal. Here, it was held, a strict rule obtained. Kirby P specifically rejected the argument that s 55(1) of the Act had a mandatory operation while s 55(2) was directory in effect. In particular, his Honour noted that the period of 21 days was the same 21 days referred to in both ss 55(1) and 55(2), thus a "clearer inter-relationship between the two sections would be difficult to state." 49In rejecting the appellant's arguments, Kirby P again returned to the line of authorities established by the court in Patterson and stated as follows: ... The policy choice presented by Patterson and James was made clear for parliament. This Court drew an inference as to the presumed purpose of parliament. It was one which, in that case, led to an apparent injustice, for the purported appeal was only two days out of time. In D'Arcy ( see D'Arcy v Department of School Education (Court of Appeal, 9 May 1994, unreported), the court expressly drew attention to the possible need for statutory reform. Notwithstanding this, parliament has so far declined to amend the terms of s 55. The long list of statutes by which the Act has been amended since 1980 are contained in the Table of Acts now printed in the notes to the Act. The Act has been amended at least twenty-two times. Yet the effect of Patterson and James has not been reversed. In these circumstances, it is not unreasonable to infer that parliament has sanctioned the approach adopted in that earlier decision of the Court. This could be because it has been deemed convenient to the Executive Government because it helps secure the policy of certainty in public employment and limits appeals, just as Moffitt P reasoned. The terms of s 55(1) have been allowed to lie as a trap for the unrepresented and the unwary. It does no particular, additional offence to my sense of justice to conclude that the same trap is laid by another subsection of s 55. Indeed it would be surprising if parliament were to be so rigid upon one subsection that this Court should infer that it intended to be generous and flexible in relation to the immediately succeeding subsection. ... 50While persuaded that the proper approach was to confirm the line of cases commencing with Patterson , his Honour noted that there was no application to re-argue Patterson, observing that the decision had stood for a long time and had recently been applied by a unanimous court. Nevertheless, his Honour was moved to then state as follows: ... The outcome of this case gives still further emphasis to the call made by this Court in D'Arcy for parliamentary reconsideration of the rigidity of s 55. If it were truly the purpose of parliament to be so rigid in a statute otherwise conferring valuable and beneficial employment privileges, this case, Patterson and James and D'Arcy demonstrate the possible injustice of such rigidity. Even the suggested policy of certainty is unconvincing. That consideration could be taken into account in any application for an extension of time. It seems scarcely likely that an appeal filed and served at the last minute, within time, would occasion much less certainty in public employment than an appeal filed out of time by a couple of days, or filed within time and served three days later. It is rare, nowadays, for such an approach to time to govern the determination of legal rights. Normally, parliament, like the courts, acknowledges the multitude of minor mishaps which can occur, without fault on the part of the litigant, which it should be competent for a court to weigh in an application for extension of time . 51Some care, however, is required in dealing with these earlier decisions. As indicated by reference to cases decided prior to Project Blue Sky , dealing with the word "shall", it is apparent the superior courts have, from time-to-time, moved between treating the word "shall" as mandatory and to be strictly complied with and at other times have favoured an approach that allows substantial compliance. Whatever else may be said about those legal fashions, it is now settled that it is not sufficient to simply say the word "shall" requires strict compliance and when used in relation to a time limit, must operate as a mandatory provision if no specific provision is made for extension of time: that approach wrongly commences with a conclusion and pays no attention to statutory purpose and context. For example, legislatures have now moved to the use of the word "must" to indicate a higher level of statutory obligation but even then the exercise of statutory construction is to follow the approach laid down it Project Blue Sky. In the joint judgment of McHugh, Gummow, Kirby and Hayne JJ, the following was stated regarding the task of statutory construction: [69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. ... The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". ... In Commission for Railways (NSW) v Agalianos , ... Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. ... [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. ... Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. ... [72] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. ... 52The difficulty of applying older cases on approaches to statutory construction in light of significant changes brought about as the modern law developed and as now expressed in Project Blue Sky , was discussed by Spigelman CJ in McDonald's Australia Holdings Ltd and anor v Industrial Relations Commission of New South Wales [2005] NSWCA 286; (2005) 223 ALR 78; (2005) 144 IR 219 . That case dealt with the developing jurisprudence of the Industrial Commission in Court Session regarding the scope of operation of the unfair contracts provision found in s 106 of the IR Act . Applicants had long relied on decisions of the High Court giving recognition to the wide powers available under the statutory equivalent (s 88F of the Industrial Arbitration Act 1940) leading the Commission to refer to the fact that cases brought under these provisions had become part of a live commercial jurisdiction dealt with by the Court. In relation to those approaches, Spigelman CJ stated: [4] The jurisdiction of the commission under s 106 to the Act to declare void and/or to vary a contract "whereby a person performs work in any industry if the commission finds that the contract was an unfair contract" has been considered by this court in a number of recent decisions to which I will further refer below: see Mitchforce Pty Ltd v IRC (NSW) (2003) 57 NSWLR 212; [2003] NSWCA 151 ( Mitchforce ); Solution 6 Holdings Ltd v IRC (NSW) (2004) 60 NSWLR 558; 208 ALR 328; [2004] NSWCA 200 ( Solution 6 ); Old UGC Inc v IRC (NSW) (2004) 60 NSWLR 620;[2004] NSWCA 197 ( Old UGC ); Mayne Nickless Ltd v IRC (NSW) (2004) 141 IR 1 ; [2004] NSWCA 359 ( Mayne Nickless ); Sydney Water Corporation Ltd v IRC (NSW) (2004) 61 NSWLR 61 ; [2004] NSWCA 436; MMAL Rentals Pty Ltd v Bruning (2004) 139 IR 377; [2004] NSWCA 451 ( MMAL Rentals ). This case concerns the application of the principles developed in that line of case law to the facts of the present case. [5] The applicable High Court authorities, Stevenson v Barham (1977) 136 CLR 190; 12 ALR 175 and Brown v Rezitis (1970) 127 CLR 157; [1971] ALR 317 were decided at a time when courts were prone to apply a more narrowly literalist approach to the task of statutory interpretation than is the case today. [6] The failure to adopt a purposive approach is made plain by Barwick CJ when he said in Stevenson v Barham ( at CLR 192 ; ALR 177): Notwithstanding the wide language of s 88F, I have found difficulty in becoming convinced that it was within the contemplation of the legislature that agreements for business ventures, of which the present may be a specimen, freely entered into by parties in equal bargaining positions, should be so far placed within the discretion of the Industrial Commission as to be liable to be declared void. However, I have come to the conclusion that the language of s 88F of the Act is intractable and must be given effect according to its width and generality. The legislature has apparently left it to the good sense of the Industrial Commission not to use its extensive discretion to interfere with bargains freely made by a person who was under no constraint or inequality, or whose labour was not being oppressively exploited. [7] It is now well established that context must be taken into account in the first instance and not merely after ambiguity has been identified: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 ; 141 ALR 618 at 634-5; [1997] HCA 2; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; 153 ALR 490; [1998] HCA 28 at [69]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273; 205 ALR 1; 78 ALJR 585; [2004] HCA 14 at [11]. Furthermore, the purposive approach to interpretation has come to prominence, first at common law and subsequently by statute, originally in 1983, by the insertion of s 15AA into the Acts Interpretation Act 1901 (Cth) and in New South Wales by s 33 of the Interpretation Act 1987 (NSW). [8] This court remains bound by the earlier High Court decisions. Special leave has been granted with respect to a number of the recent decisions of this court. Accordingly, this issue will be resolved in the near future. [9] This court has, however, held that the industrial context of the legislation remains pertinent when applying the Stevenson v Barham test to determine when the requisite connection between the contract or arrangement and the performance of work is sufficiently "direct": see Mitchforce , above, at [15]; Solution 6 , above, at [34]. Furthermore, Stevenson v Barham and Brown v Rezitis were not concerned with the extent of power conferred on the commission by s 106(1) to "declare void or vary" any contract or arrangement. 53In Harvey , the Court of Appeal was apparently not taken to the decision of a differently constituted Court in Cole v Director General of the Department of Youth and Community Services and anor (1987) 7 NSWLR 541 . That case also dealt with the provisions of the GREAT Act although not dealing with the effect of provisions limiting the time for appeal but addressed issues as to what decisions might be open to appeal. At p 543, Kirby P stated as follows: Thirdly, and most importantly, the provision for appeals is a beneficial one, conferring on employees of the Public Service entitlements to the review of decisions which were not enjoyed by Crown servants by the prerogative or at common law and which are not generally enjoyed, at least to the same extent, by employees in the private sector: see Suttling v Director-General of Education (1985) 3 NSWLR 427. The entitlement to appeal conferred by s 20 is a beneficial entitlement of employment. It should not be excluded or confined by the exceptions provided in s 21, except to the extent those exceptions are clear. Any doubt about the scope of s 21(1)(e) should be resolved in favour of the enhancement of the right to appeal and against its diminution by the operation of the exclusion. In a separate judgment, McHugh JA at p 549 stated: The title of the Act and heading Div 1 of Pt III indicate that the grant of a right of appeal against promotion decisions are one of the two purposes of the Act. On a number of occasions I have emphasised the importance of interpreting legislation with the general purpose of the statute in mind rather than by simply relying on the literal meaning approached to statutory construction: Canterbury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR 525 at 541-543; Australian Postal Commission v Dao (1986) 6 NSWLR 497. 54The decision in Cole is an early recognition of the wider approach to statutory construction. Applying the approach in Project Blue Sky, it is then necessary to consider the provisions of the TAB Act. The long title states that it is an Act to provide for the constitution of a Transport Appeals Board and to make provision with respect to appeals by officers and employees of the State Transit Authority and other Authorities. By s 3 the Act applies in respect of promotion appeals and disciplinary appeals and provision is made for the identification of those entitled to exercise those rights. Under s 11, dealing with sittings of a Board, sub-section 2 provides that, subject to this or any other Act, proceedings before a Board for the purposes of hearing an appeal are to be treated as if they were proceedings before the Industrial Relations Commission under Pt 7, Ch 2 of the IR Act. Section 14(1) provides that, subject to sub-section (2), an appeal shall be heard by the Board within 30 days from its lodgement and sub-section (2) provides in certain circumstances (such as volume of work, illness or criminal proceedings or by agreement between the parties), an adjournment might be granted. Section 35 provides a limitation on the rights of appeal to any other Appeals body but in the circumstances referred to provides that an officer does not have a right to appeal to other statutory Appeal bodies, including the Industrial Relations Commission in respect of a decision as defined under the Act. 55It is important, however, to return to s 23A(3), set out in full in [12]. In short, Pt 7, Ch 4 of the IR Act applies to an appeal against a decision of the TAB in the same way as it applies to an appeal against a decision of the Industrial Relations Commission under s 197B of the IR Act. Section 197B of the IR Act deals with appeals on questions of law in relation to public sector promotional and disciplinary matters. It allows appeals against any decision of the Commission in the proceedings on a question of law but those proceedings are now conducted under Pt 7, Ch 2 of the IR Act . 56Importantly, Pt 7 of the IR Act contains s 189, a section that provides for the time and procedure for making appeals under that Part and thus sets the time and procedure for making appeals under s 197B. Section 189(1) provides that an appeal to the Full Bench of the Commission under Pt 7 "must be made within 21 days after the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential member allows." If full effect is given to s 23A(3), s 189 of the IR Act applies and the appeal time may be extended. This is a significant departure from the legislative scheme dealt with in the older cases, such as Patterson . 57The insertion of sub-section (3) into s 23A of the Act appears to be, at least, some recognition by the legislature of the harshness of applying a strict time limit approach to promotion and disciplinary appeals under the TAB Act. The TAB Act has, therefore, specifically reversed the approach previously adopted over a period of time in relation to the GREAT Act and the same type of appeal provisions. The question then arises whether, in the transfer of the jurisdiction of the previous Transport Appeal Boards to the Industrial Commission of New South Wales in 2010, there was also brought about a changed approach to the time for lodging appeals to the TAB itself. As noted in Matkevich , the approach in Electric Light and Power and Hussein becomes relevant. In Electric Light, the court at p 559 stated: S 3 of the Purchase Act takes the course of referring a particular matter for hearing and determination to an existing court established as part of the judicial system of the State, the proceedings of which are regulated by a statutory enactment and a body of rules, and the authority of which is amplified by some, and qualified by other, provisions of the enactment, one qualification being the duty to state a case upon a question of law if required by a party. When such a course is adopted it is taken to mean, unless and except in so far as the contrary intention appears, that it is to the court as such that the matter is referred exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected. There are well-known passages in National Telephone Co Ltd v Postmaster-General (1913) AC 546, which it may be as well to quote. Viscount Haldane LC said: When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decisions likewise attaches. (at p 552) Lord Parker of Waddington said: Where by statute matters are referred to the determination of a court of record with no further provision, the necessary implication is, I think, that the court will determine the matters, as a court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same. (at p 562 ). Lord Shaw of Dunfermline said: In the general case, when a court of record . . . becomes possessed, by force of agreement and statute, of a reference to it of differences between parties, the whole of the statutory consequences of procedure before such a court ensue. (at p 557). That passage in Electric Light was applied in relation to the jurisdiction of the Industrial Commission of New South Wales in Hussein . 58Are there relevant provisions in the IR Act that may be considered in this construction exercise ? Section 185 of the IR Act empowers the making of rules of the Commission. At the time of the matter coming before the TAB, the February 2010 Rules applied to the Commission and r 8.2 provided for an appeal to be made within 21 days after the date of the decision appealed against or "within such further time as the Commission may allow." It might be argued that the approach in Electric Light and Hussein would lead to the situation that, where the legislature had conferred the jurisdiction of the TAB on the Industrial Commission then, absent any provision clearly to the contrary, the jurisdiction of the Commission and its practices and procedures apply to such proceedings. Thus, an appeal made to the TAB may be the subject of an application for extension of time pursuant to r 8.2. Whether or not that is the result of conferring the TAB jurisdiction on the Commission inevitably leads to a fresh consideration of the specific provisions in the TAB Act to establish if these rules are to be read down or to be treated as inapplicable. We do not intend to undertake that exercise but it is sufficient for present purposes to note that, as a guide to the meaning of s 13, a statutory construction that treats non-compliance with the 21-day period as not rendering an appeal invalid would operate consistently with the further appeal provision from the TAB to the Industrial Court on a question of law. It is also relevant that the TAB Act treats appeal proceedings before the Board as proceedings in the Industrial Relations Commission. As Basten JA said in Lambert at [63] consideration of the broader context of a statutory appeal may include reference to powers conferred on that court hearing the appeal and may also require reference to procedural provisions, which give it colour and context. 59It is to be observed that s 23A does not directly set down any time limit for appeals on the questions of law to this Court but having regard to the approach of the Court of Appeal in Patterson and Harvey , emphasising the apparent comity of the appeal time limits both for appeals to GREAT and appeals from that Tribunal to the Court of Appeal, then it appears to be a decidedly odd result that more flexibility would be given to an appeal to the Court than an appeal to the Tribunal. It perhaps should be observed that s 100B of the IR Act (under Pt 7, Ch 2 and dealing with public sector promotion and disciplinary appeals), provides a time limit for lodging promotion appeals in language that states that such an appeal "must be lodged" in relation to a promotion appeal within 21 days after the date of the Notice referred to in the statute or in relation to a disciplinary appeal, within 28 days of notification of the decision. The use of the word "must" and the different time limits for promotion and disciplinary appeals has not been reflected in the TAB Act. 60The general purpose of the Act is to provide employees with statutory rights of appeal in promotion and disciplinary matters. The Act lays down administrative procedures for raising and determining such appeals. The Act also seeks to have the appeal process completed in a timely manner. The appeal proceedings before the TAB are to be treated as if they were proceedings before the Industrial Relations Commission. Nothing arises from these provisions that compels a conclusion that the 21-day period for lodging an appeal was intended to erect an immovable barrier to appeals lodged outside that period. The construction exercise, unfortunately, is not assisted by a lack of consistency and language between the public sector provisions in Pt 7, Ch 2 of the IR Act and similar provisions found in the TAB Act. 61As to issues of policy, it is likely that the legislature would want any disciplinary appeal to be dealt with promptly. That policy approach is not necessarily frustrated by a capacity to allow appeals lodged at a later time, although considerations of substantial compliance in achieving justice between the parties will be likely to arise. Consistency and harmony with the operation of s 197B of the IR Act is also a factor: this issue appears to be a major consideration in the older judgments in Harvey and Patterson . 62When considering concepts of fairness and justice in the context of the Act, it is clear that this valuable right of appeal might be lost in circumstances where proper efforts have been made to comply with the 21 days period. Mr Brown's case and the Tenedora case are clear examples of this. Minor acts of non-compliance that do not prejudice the employer in any significant way may be accommodated. 63It must be accepted, however, that the construction of s 13 is not without its difficulties and some doubt surrounds the nature of the 21-day period. When s 13 of the Act is approached as required by Project Blue Sky , the considerations appear to fall on the side of treating the 21-day period as not requiring appeals lodged outside that period to be invalid. Such invalidity does not clearly appear to be the purpose of the legislation - it is broadly concerned with appeal rights at two levels rather than limiting appeal rights. Indeed, it cannot be concluded that it was a purpose of the legislature that an act done in breach of s 13 should be invalid. Thus, the principle referred to by Kirby P in Cole has real significance for the present statutory construction exercise. The TAB Act is to be treated as beneficial legislation conferring valuable appeal rights on employees: those rights should not be diminished where any doubt exists and a construction should be favoured that enhances the right of appeal. That approach accords with the general purposes of the TAB Act. 64In concluding that s 13 of the Act does not treat as invalid an appea l lodged outside of the 21 days period in appropriate circumstances, it follows that the appeal by RailCorp as to jurisdiction must fail although the decision of the Tribunal was wrong in law in treating the appeal as lodged within 21 days. The questions raised, however, have great significance for those covered by the provisions of the Act and the issues have been complex: in those circumstances, it is appropriate that Leave to Appeal be granted but the Appeal be dismissed. Because this Court is dealing with a confined Appeal under s 23A, it is not open for the Court to order that time be extended so that Mr Brown's appeal can proceed before the TAB. That is a matter that must be dealt with by the TAB and it is, therefore, appropriate, that the appeal be remitted to the TAB to deal with any Application for Extension of Time that is made on behalf of Mr Brown and if Time to Appeal is extended, to deal with the merits of his appeal.

ORDERS 65(1) Leave to appeal is granted. (2) The decision of the Transport Appeal Board is set aside but otherwise the Appeal is dismissed. (3) The application by Mr Brown for reinstatement of employment is remitted to the Transport Appeal Board to deal with any Application for Extension of Time to Appeal and if necessary, the merit of the application for reinstatement.

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