Rail Corporation of NSW v Elleray [2017] NSWSC 1726 | Case summary

Supreme Court of NSW|2017-12-11|Before: Adamson J, Kite AJ

Solicitors: Crown Solicitor's Office (The Prothonotary of the Supreme Court of New South Wales) File Number(s): 2017/291159

Introduction

By amended notice of motion filed in court on 11 December 2017, the Prothonotary of this Court seeks an order pursuant to s 23 of the Supreme Court Act 1970 (NSW) that the direction made by Kite AJ in proceedings no IRC177/2014 in the Industrial Court of New South Wales on 21 May 2015, referring to the Industrial Registrar for the commencement of proceedings under s 180 of the Industrial Relations Act 1996 (NSW), the matter of the failure of the defendant, David Elleray, to make payments in accordance with an order of the Industrial Court be revoked.
Mr Kell SC, who appears on behalf of the Prothonotary, submitted that it was appropriate that the direction made by Kite AJ be revoked. He has established that the two relevant parties, the Rail Corporation of New South Wales (RailCorp) and Mr Elleray himself, do not oppose the orders sought.
The real question for decision is whether this Court has power to revoke the direction and, if so, whether that power ought be exercised. In order to address this question, it is necessary to give some background to the direction made by Kite AJ which is sought to be revoked.

The factual background

On 9 July 2012, Mr Elleray was dismissed from his employment as a train guard with RailCorp. He appealed to the Transport Appeals Board (the Board) against the dismissal. His appeal was upheld by the Board on 7 May 2013 and RailCorp was ordered to reinstate him to his former position.
On 28 May 2013, RailCorp appealed to the Industrial Relations Commission of New South Wales in Court Session (the Industrial Court) against the Board's decision and sought a stay of the reinstatement order pending the determination of the appeal.
On 19 June 2013, the Industrial Court made orders by consent which were subsequently varied on 1 July 2013. Relevantly, the Industrial Court ordered that, in the event that RailCorp was ultimately successful in its appeal, Mr Elleray would repay RailCorp all the amounts paid to him by RailCorp pursuant to other orders made for a stay of his reinstatement, on the basis that Mr Elleray would continue to receive his usual wages in the interim.
On 30 September 2013, the Industrial Court allowed RailCorp's appeal and ordered that the matter be remitted to the Board for determination according to law.
On 16 December 2013, the Board dismissed Mr Elleray's appeal. Thereafter, Mr Elleray appealed the decision of the Board to the Industrial Court which dismissed Mr Elleray's appeal on 24 August 2014.
Between 19 June 2013, when the consent orders referred to above were made, and 30 November 2013 (immediately prior to the dismissal of his appeal by the Board), RailCorp made payments totalling approximately $25,000 to Mr Elleray.
On 20 December 2013, RailCorp sought repayment of those amounts in accordance with the consent orders which, as I have referred to above, were made by the Industrial Court on 19 June 2013.
In March 2014, RailCorp commenced proceedings in the Industrial Court seeking an order that Mr Elleray was guilty of contempt of the Industrial Court, by failing to make the repayments as required by the consent orders. It appears that Mr Elleray made some repayments as a result of which the contempt proceedings were adjourned from time to time.
On 18 February 2015, the Industrial Court granted leave to RailCorp to amend its application to seek, in the alternative, an order that the matter be referred to the Industrial Registrar for consideration whether contempt proceedings should be commenced under s 180 of the Industrial Relations Act. Apparently the application and consequential order reflected concern as to the standing of RailCorp under the Industrial Relations Act to initiate a prosecution for contempt.
The matter came before Kite AJ who, on 21 May 2015, delivered judgment and directed as follows: "I order that this matter be referred to the Industrial Registrar for the commencement of proceedings under s 180 of the Industrial Relations Act 1996 (NSW) for punishment of the respondent's contempt of the Commission."
I accept Mr Kell's submission that, while the direction was expressed by Kite AJ to be an order, since it, for reasons given below, picked up the power of a judge of this Court to give a direction under Supreme Court Rules 1970 (NSW) Pt 55 r 11(1), it ought appropriately be classified as an exercise of ministerial rather than judicial power.
The Industrial Registrar, in purported compliance with this direction, instructed the Crown Solicitor to give advice as to the commencement of the prosecution. Before any such proceedings had been commenced, the Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) (the Amending Act) came into force.

The effect and relevance of the Amending Act

The Amending Act abolished the Industrial Court and provided that its functions be transferred to this Court. It also reconstituted the Industrial Relations Commission. The Amending Act inserted into the Industrial Relations Act s 355B which relevantly provides that this Court has jurisdiction over "proceedings for an offence against any industrial legislation (including proceedings for contempt of the Commission)".
As a consequence of the transfer of functions to this Court, the Prothonotary of this Court instructed the Crown Solicitor in relation to the direction made by Kite AJ. Certain advice was provided by the Crown Advocate to the Prothonotary in relation to sufficiency of evidence. There has been no waiver of privilege in respect of that advice. However, I note that, apparently in consequence of that advice, on 22 August 2017 the Prothonotary instructed the Crown Solicitor to file a notice of motion seeking the revocation of Kite AJ's direction.

The Prothonotary's standing to make the application

The first question is whether the Prothonotary has standing to make the present application. The Industrial Relations Rules 2009 (NSW) did not include an express provision by which a judicial member could direct the Industrial Registrar to commence proceedings for contempt. However, s 164(2) of the Industrial Relations Act provided for a general conferral of power on the Industrial Court to exercise the functions of the Supreme Court, relevantly in relation to the punishment of persons guilty of contempt.
In my view, functions in connection with punishment of persons guilty of contempt include the directing of the commencement of contempt proceedings that could result in the punishment of such persons. The functions of the Supreme Court within the meaning of s 164(2) of the Industrial Relations Act would engage the power of the Supreme Court under Pt 55 r 11(1) of the Supreme Court Rules to direct the Registrar to commence a prosecution for contempt.
I am satisfied that Kite AJ on 21 May 2015 relevantly had the power to direct the Prothonotary to apply by motion to commence proceedings for contempt. Accordingly, the Prothonotary has standing to apply for revocation of such a direction if appropriate.

This Court's power to make the order sought

The next question is whether this Court has power to make the order sought to revoke the direction made by Kite AJ. I am satisfied on the basis of Mr Kell's careful submissions that while the Amending Act inserted several transitional provisions, did not make any express provision for the withdrawal of directions such as the present. Clause 61 of Sch 4 abolished the Industrial Court but otherwise confirmed the continuation of the Industrial Relations Commission. The Supreme Court now has jurisdiction in relation to proceedings for an offence of contempt of the Commission. The Supreme Court is, accordingly, the successor court to the Industrial Court in relation to such proceedings. Clause 68 of Sch 4 provides that unexercised rights to apply to the Industrial Court to exercise a function are preserved. By cl 68(3) the Supreme Court may exercise all of the functions of the Industrial Court in relation to such a right as if it had been made before abolition day. However, the express terms of the transitional provisions, including cl 68(3), do not in terms empower this Court to withdraw the direction of Kite AJ.
In these circumstances the question arises whether this Court's jurisdiction under s 23 of the Supreme Court Act, which provides that this Court is to have "all jurisdiction which may be necessary for the administration of justice in New South Wales", is sufficient for the order sought by the Prothonotary in the amended notice of motion to be made.
I am satisfied on the basis of Mr Kell's submission that no other Court or Commission has jurisdiction to make the order sought, this Court being the successor court to the Industrial Court.
If I were to refuse the order sought, it would be necessary for the Prothonotary, notwithstanding what I infer to be advice to the contrary, to commence proceedings for contempt which are neither sought by the ultimate beneficiary of the payments, namely RailCorp, nor by Mr Elleray who would be relieved of the obligation to answer any contempt proceedings. It is undesirable that refusing to make the order sought would mean that the Prothonotary would have no choice but to commence proceedings in this Court only to seek that they be discontinued if it were appropriate to do so or if the Prothonotary were advised, for example, that the proceedings did not have reasonable prospects of success.
I am satisfied on the basis of the submissions made by Mr Kell that it is necessary for the administration of justice in New South Wales that I have jurisdiction to make the order sought in the amended notice of motion filed in court on 11 December 2017. Accordingly, by reason of s 23 of the Supreme Court Act, this Court does have jurisdiction to make the order sought.
For these reasons, I am satisfied that it is appropriate to make an order in terms of prayer 1 of the amended notice of motion filed today. I note that the Prothonotary does not seek any order for costs.
Accordingly, the orders I make are: (1) On the application of the Prothonotary of the Court, an order that, pursuant to s 23 of the Supreme Court Act 1970, the direction made by Kite AJ in proceedings number IRC177/2014 in the Industrial Court of New South Wales on 21 May 2015, referring to the Industrial Registrar for the commencement of proceedings under s 180 of the Industrial Relations Act 1996, the matter of the failure of the defendant, Mr Elleray, to make payments in accordance with an order of the Industrial Court be revoked. (2) Make no order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2017

Industrial Relations Amendment (Industrial Court) Act 2016(NSW)

Industrial Relations Rules 2009(NSW)

Rail Corporation of NSW v Elleray

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