The Toll Group's submissions
14 Mr Archibald QC for the Toll Group put the following summary submissions:
"1. There are no "special circumstances" such as would warrant removal to the Court of Appeal of the plaintiff's summons dated 21 December 2001. In light of the whole body of authority, there is no continuing controversy on any issue of principle that warrants the attention of the Court of Appeal.
2. It is common ground that, in the circumstances stated in section 8(1)(b) of the Cross-Vesting Act, the Supreme Court has power to order the removal of a proceeding from the IRC. There is, accordingly, no dispute as to issues of jurisdiction, strictly so called, cf. James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357.
3. The questions proposed by the defendant reveal that the area of contention between the parties concerns only the appropriate weight to be given to particular discretionary factors. No question of principle requiring the attention of the Court of Appeal or permitting any meaningful answer has been, or can be, distilled.
4. The first question proposed by the defendant does no more, in effect, than ask whether the plaintiffs should be granted the relief they seek. It is not a question of law. The second question is directed to the weight that should be given to certain facts - a determination which, at present, is made by the members of the Equity Division without encountering any dilemma of conflicting authority in each and every transfer application that comes before them: see Heath and Macquarie Bank. No judgment of the Court of Appeal in this case could offer relevant guidance for all cases dealing with such issues."
Dealing with the issue
15 I accept that it is quite clear that disparate approaches have been taken by single judges of the Equity Division in relation to cross-vesting applications of the nature earlier referred to. There is indeed authority for this proposition in the form of the judgment of Young J. in Minproc Ltd v Killinger [1999] NSWSC 564, 25 May 1999, unreported, Butterworths Cases 9903022:
"10 An initial problem is that there is to be found in the Industrial Relations legislation the flavour that the Commission is the sole court that should consider applications of this nature.
11 This problem has been considered by this Court on previous occasions. There are two tranches of cases, the first dealing with a whether this Court could grant an injunction to protect people pending an application under section 106 of the Industrial Relations Act, the second as to whether such application could be transferred into this Court, usually with a view to being transferred to the Federal Court, which could exercise some other jurisdiction under provisions of the Trade Practices Act 1974. After some hesitation, this Court decided that there was jurisdiction to do that despite the general flavour of the Industrial Relations Act; see Winron Pty Ltd v Shell Company of Australia Ltd (1996) 66 IR 64 and Bruning v Kingmill (Australia) Pty Ltd (1998) 44 NSWLR 180 at 182. The profession really should assume that the decision in Bruning is this Division's last word on the matter until the Court of Appeal determines otherwise "
[emphasis added]
16 The authorities bear out the fact that these disparate approaches have been the order of the day. Without purporting to analyse in any detail at all, the sundry decisions of relevance, it is convenient to simply note the following:
· Wood v Boral Resources (NSW) Pty Ltd (unreported, McClelland CJ in Eq, 28 October 1993 - Butterworth Cases 930-2189); this is the principal decision relied upon by counsel for Mr Finemore in support of the proposition that the Equity Division, at least through the then Chief Judge in Equity, held that it would be anomalous if the mechanism of the Cross-Vesting Act were to be used to transfer proceedings properly pending in the Industrial Court to which its specialised nature was highly relevant, to a Court of relevantly un-specialised jurisdiction or composition.
· Winron Pty Ltd v Shell Company of Australia Ltd (1996) 66 IR 64 determined by consent by Young J, the now Chief Judge in Equity.
· Bruning v Kingmill (Australia) Pty Ltd (1998) 44 NSWLR 180 a decision of Hodgson J, the then Chief Judge in Equity who saw it as appropriate to distinguish the proceedings from the decision in Wood upon the basis that there was no substantial overlap between the issues in the relevant two sets of proceedings, no suggestion of forum shopping and a consensual application.
· Minproc (supra) a decision of Young CJ in Eq.
· Heath Group Australasia Pty Ltd v Hanning [1999] NSWSC 719 (unreported, Austin J, 19 July 1999, Butterworths Cases 9904057); where Austin J very closely examined Chapter 2 Part 9 of the Industrial Relations Act, adding at paragraph 24:
"Bruning v Kingsmill Australia Pty Ltd is authority for the view that s 9(b) confers jurisdiction on the Supreme Court of New South Wales in respect of matters removed to that Court under s 8, and that the Supreme Court consequently has all of the Commission's powers to hear and determine a proceeding under s 106 of the IR Act. In Minproc Ltd v Killinger [1999] NSWSC 564 Young J followed Bruning's case, observing (in effect) that the profession should assume that the Equity Division will follow Bruning unless the Court of Appeal determines otherwise. Some earlier observations by McLelland CJ in Eq in Wood v Boral Resources (NSW) Pty Ltd (No 4980/92, 28 October 1993, unreported) and by Young J in Winron Pty Ltd v Shell Co of Australia Ltd (1996) 66 IR 64, which suggest some doubt as to whether the Supreme Court had jurisdiction to deal with a proceeding under s 275 of the former Industrial Relations Act 1991 after an order for removal under s 8, do not fully explore the question and in my opinion, to the extent that those doubts are inconsistent with the reasoning in Bruning's case, Bruning's case is to be preferred."
· Macquarie Bank Ltd v Bell [1999] NSWSC 957 (unreported, Hodgson CJ in Eq, 22 September 1999) electing to follow Bruning.
· Premier Sports Australia Pty Ltd v Dodds [2001] NSWSC 707, (unreported, Palmer J, 15 August 2001)
17 Although I readily accept that the problem which has arisen in the disparate decisions does not concern jurisdiction but rather concerns the appropriate exercise of a discretion, it does seem to me that the matter is of sufficient significance and importance to the profession to warrant consideration by the Court of Appeal. Special circumstances do exist warranting the removal of the proceedings to the Court of Appeal where Mr Finemore seeks to put an argument which the Chief Judge in Equity has stated is not available other than in the Court of Appeal. Cross-vesting decisions being unappellable (section 13 of the Cross-Vesting Act), the only manner in which consideration to the issue may be given by the Court of Appeal is by way of removal.
18 I accept as of substance the submissions put by Mr Bell to the effect that fairness dictates removal in the circumstances of the present proceedings where the argument which his client wishes to put (on any view, a respectable argument having commanded the strong approbation of McClelland J) may, as a practical matter, effectively be foreclosed to Mr Finemore by virtue of the observations of Young J. in Minproc and the recent pronouncements on the issue by other members of the Equity Division, especially Austin J in Heath and Hodgson CJ in Eq in Macquarie Bank v Bell.
19 It is clear that a review of the cases in the area discloses a diversity of views as to the significance or otherwise to be attributed to the fact that the proceedings sought to be removed and cross-vested are pending in the Industrial Relations Commission. The only practical way of providing authoritative guidance on this question to single judges of the Court and to practitioners is for the matter to be removed to the Court of Appeal. Such guidance was recently given in respect of unique procedural features of another specialist tribunal, namely the Dust Diseases Tribunal, in James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357.
20 Clearly the number of recent cases seeking the removal and cross-vesting of proceedings pending in the Industrial Relations Commission show that the questions sought to be raised on the removal application are of high practical significance.
21 It is at least arguable that as a consequence of the approach taken in Heath in terms at least in a certain character of cases, of the lessening of significance to be attached to the specialist expertise of the Industrial Relations Commission, a degree of encouragement will have been given leading to further applications for the removal of proceedings from a Court of equivalent status to the Supreme Court of New South Wales. Considerations of comity properly owing to the Industrial Relations Commission holds a relevance as it seems to me, on the general question of the removal of the proceedings to the Court of Appeal for authoritative guidance.