Resarta Pty Ltd v Finemore

Court of Appeal (NSW)|2002-08-28|Before: Spigelman CJ, Giles JA, Einstein J

CITATION : Resarta Pty Ltd v Finemore [2002] NSWCA 250 FILE NUMBER(S) : CA 40254/02 HEARING DATE(S) : 24/07/2002 JUDGMENT DATE : 28 August 2002

PARTIES : Resarta Pty Ltd v Ronald Stanley Finemore JUDGMENT OF : Spigelman CJ at 1; Giles JA at 40; Foster AJA at 41

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 6082/01 FILE NUMBER(S) : LOWER COURT Einstein J JUDICIAL OFFICER :

A C Archibald QC / P.R. Whitford - Appellant COUNSEL : Andrew S. Bell - Respondent Clayton Utz - Appellant SOLICITORS : Atanaskovic Hartnell - Respondent CATCHWORDS : CROSS-VESTING - Industrial Commission of New South Wales - proceedings alleging that contract unfair - whether jurisdiction to cross-vest - "State matters" - non-judicial power. - CROSS-VESTING - Industrial Commission of New South Wales - proceedings alleging that contract unfair - exercise of discretion to cross-vest - whether in interests of justice to cross-vest - senior executive - forensic advantage - expense - overlap between proceedings - Victorian Supreme Court only court able to deal with all issues between parties. - "D" Jurisdiction of Courts (Cross-Vesting) Act 1987(NSW) Supreme Court Rules Industrial Relations Act 1991 Industrial Relations Act 1996 LEGISLATION CITED : Industrial Arbitration Act 1940 Anti-Discrimination Act 1977 Trade Practices Act 1974 Fair Trading Act 1987 (NSW) Fair Trading Act 1999 (Vic) Minproc Ltd v Killinger, [1999] NSWSC 564 Winron Pty Ltd v Shell Company of Australia Ltd (1996) 66 IR 64 Bruning v Kingmill (Australia) Pty Ltd (1998) 44 NSWLR 180, 182. Wood v Boral Resources (NSW) Pty Ltd (unreported, 28 October 1993) Heath Group Australasia Pty Ltd v Hanning (1999) NSWSC 719. Macquarie Bank Ltd v Bell & Anor (1999) NSWSC 957. Goodwin v Phillips (1908) 7 CLR 1 pp 7,10,11,14&15 Walker v Industrial Court of NSW & Anor (1994) 53 IR 121 Re Wakim: ex parte McNally (1999) 198 CLR 511 CASES CITED: Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711 at 713 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357 Minister for Youth & Community Services v Health & Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 43 at 559-560 Visalli v Southwell (1988) 12 NSWLR 502 at 510 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 190-191 The Queen v Joske; Ex parte Shop Distributive & Allied Employers Association (1976) 135 CLR 194 at 215-218 King v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2001) 109 FCR 447 at [45-55] Gould v Brown (1998) 193 CLR 346 R v Porter [2001] 53 NSWLR 354 Premier Sports Australia Pty Ltd v Dodds [2001] NSWSC 707 DECISION : Make orders as sought in Summons (refer para 41); Respondent pay the costs of the proceedings in this Court and in the Court below.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40254/02

SPIGELMAN CJ GILES JA FOSTER AJA

August, 2002 RESARTA PTY LIMITED & 2 ORS v RONALD STANLEY FINEMORE Judgment 1 SPIGELMAN CJ: I have had the benefit of reading the judgment of Foster AJA in draft. I gratefully adopt his Honour's outline of the facts and issues. Subject to the following observations, I agree with Foster AJA.

The jurisdiction to cross-vest 2 Mr Finemore's primary submission is that there is no jurisdiction to transfer the proceedings in the Industrial Commission of New South Wales pursuant to the cross-vesting scheme. Dr A Bell, who appeared for Mr Finemore, submitted that there was a clear distinction between the jurisdiction of the Industrial Commission under Ch 2 Pt 9 of the Industrial Relations Act 1996 and the jurisdiction exercised by the Dust Diseases Tribunal considered by this Court in James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357. Specifically, the Dust Diseases Tribunal has a jurisdiction to hear negligence cases formerly heard in the Supreme Court of New South Wales. The jurisdiction of the Industrial Commission under Ch 2 Pt 9 has never been exercised by the Supreme Court. 3 Dr Bell referred to the jurisdiction of the Commission at the time of the adoption of the cross-vesting scheme by New South Wales in 1987. At that time, the relevant power was contained in s88F of the Industrial Arbitration Act 1940 ("the 1940 Act"). Dr Bell referred to authorities in this Court that the Commission, when exercising its jurisdiction under s88F, was not engaged in the exercise of judicial power. (See Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 esp at 559-560 per McHugh JA; Visalli v Southwell (1988) 12 NSWLR 502 esp at 510 per Kirby P.) 4 Dr Bell primarily relied on the fact that the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) ("the Cross-Vesting Act") purported to confer jurisdiction upon and to give this Court power to transfer proceedings, not only to other supreme courts, but also to federal courts. He submitted that the New South Wales Parliament could not have intended to pass legislation that was plainly constitutionally invalid. Any attempt to confer a non-judicial power upon, or to transfer such proceedings to, a federal court would be plainly invalid. Accordingly, the Cross-Vesting Act should be construed so as not to apply to proceedings in the Commission under s88F of the 1940 Act. He submitted that nothing had changed in this regard under subsequent legislation. (Section 88F of the 1940 Act was substantially re-enacted as s275 of the Industrial Relations Act 1991 and was replaced, in turn, by s106 of the Industrial Relations Act 1996.) 5 The fact that a statute empowers a person to create new rights and obligations does not necessarily indicate that the power is not a judicial power. (See e.g. Precision Data Holdings Limited v Wills (1991) 173 CLR 167 esp at 190-191; The Queen v Joske; Ex parte Shop Distributive and Allied Employers Association (1976) 135 CLR 194 at 215-218; King v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2001) 109 FCR 447 at [45]-[55].) A number of the matters identified as indicia of non-judicial power by McHugh JA in Minister v Health and Research Employees' Association still appear in the Industrial Relations Act 1996, e.g. the ability of industrial organisations to apply for the variation of contracts (s108) and the determination as to whether a contract is "unfair" on the basis of events subsequent to the time when the contract was entered into (see s106(2)). It is not necessary to determine this issue. 6 The Plaintiffs in this Court, applying for an order under the Cross-Vesting Act to transfer the proceedings to the Supreme Court of Victoria, did not contest the proposition that s106 conferred a non-judicial power of the character which could never have been conferred on the Federal Court of Australia. Mr Archibald QC, who appeared for the Plaintiffs, submitted that the Cross-Vesting Act should not be read down in any way so as to prevent the transfer of proceedings to a court which could exercise a non-judicial power, like the Supreme Court of Victoria. Accordingly, it is not necessary to decide whether s106 is a non-judicial power. 7 Dr Bell focused on s4 of the Cross-Vesting Act. He submitted that each of the subsections of that Act was phrased in identical terms conferring, respectively, on the federal courts and state or territory courts jurisdiction "with respect to State matters". The words "State matter" are defined in s3 to mean a matter in which the Supreme Court has jurisdiction or which was removed to the Supreme Court under s8, i.e. removed by an order of the Supreme Court from another court or tribunal of the State. The Victorian equivalent of s9 of the Cross-Vesting Act would give the Supreme Court of Victoria power to exercise the jurisdiction conferred by, relevantly, s4(3) of the New South Wales Act and, under the Victorian equivalent of s9(b), power to hear and determine proceedings transferred to that Court. 8 As Dr Bell submitted, it appears that the words "State matters", mean the same throughout s4, whether applicable to a federal court or to a state court. By reason of the constitutional invalidity of the purported conferral of jurisdiction determined in Re Wakim; Ex parte McNally (1999) 198 CLR 511, s4(1) and s4(2) have subsequently been repealed. The issue is one of statutory construction. Should the Court prefer a construction which reads down the words "State matters" so as not to extend to a jurisdiction plainly incapable of conferral on a federal court, because it is not the exercise of judicial power or, alternatively, construe the language broadly, even if it has the consequence of undermining the constitutional validity of the scheme insofar as it applied to federal courts? In my view the latter is the correct approach. 9 By the time the issue arose for consideration in the High Court - about a decade after the scheme was implemented - the submissions of those supporting the validity of the cross-vesting scheme had to grapple with the difficulty for their arguments of the possibility that non-judicial power had been vested in federal courts. (See e.g. Re Wakim at [62].) In my opinion, the issues that emerged in the course of disputation should not be taken to have been in the minds of the respective parliaments when they made the arrangements reflected in the national cross-vesting scheme. In my opinion, both with respect to jurisdiction and to power, the intention of the respective parliaments was to confer the whole of the jurisdiction with respect to a "State matters" as defined. 10 There had been prior recognition of difficulties that could attend this course, particularly amongst those who recommended a constitutional amendment before the creation of such a scheme. (See e.g. Re Wakim at footnote 211 per Gleeson CJ.) However, the constitutional position was never as clear as now appears with the benefit of hindsight and, in crucial respects, was not so clear even at the time when the High Court divided equally in Gould v Brown (1998) 193 CLR 346. (Albeit not in relation to conferral of non-judicial power.) The position was not at any stage so obvious that such constitutional restrictions as may be found to exist with respect to the conferral of jurisdiction and power on federal courts, ought be taken to have always been intended to restrict the conferral of jurisdiction and power on other State courts. The intention of the Parliaments was to confer as much power as was constitutionally permissible. 11 Under the Cross-Vesting Act, the power to transfer proceedings to a federal court has always been stated separately from the power to transfer proceedings to a State court. The former is found in s5(1). The latter is found in s5(2). As originally enacted the two subsections were in the same form. Section 5(1) has been amended in the light of the High Court's decision in Re Wakim. Nevertheless, the power to transfer proceedings is and always has been separately stated in distinct subsections of the Cross-Vesting Act. 12 When this Court makes an order under s8(1)(b)(ii) removing a proceeding from, relevantly, the Industrial Commission, to this Court it is made "so that consideration can be given to whether the relevant proceeding should be transferred to another court". That "consideration" must, from the outset, contemplate an order either under s5(1) or s5(2). Where the relevant powers are so clearly distinguished, I do not see why the general words of the power in s8(1)(b) should be read down because one of two parallel but distinct powers may not be able to be exercised in the same way as the other. 13 In any event, there is no need to read down any part of s8 for present purposes. The power in s8(1)(b)(ii) is only a power to remove a proceeding in a State court for purposes of giving "consideration" to whether or not a transfer order ought be made. This gives rise to no constitutional issue, even if this Court, under the previous form of the Act, were to "give consideration" to a transfer to a federal court of a non-judicial power. It may very well be that this Court would determine that it should not transfer proceedings to a court which has no jurisdiction or, indeed, where there is only an arguable case that it has no jurisdiction. There is no warrant for reading down s8(1)(b). 14 The introductory words of the recital to the Act make clear the primary purpose of the national scheme: "Whereas inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts …". The extent to which this objective of the parliaments of Australia could be carried into effect was found to be subject to a limitation arising from the requirements of Chapter III of the Commonwealth Constitution. The objective of minimising "inconvenience and expense" to litigants remains an important public purpose. In my opinion, the cross-vesting legislation should be approached on the basis that this purpose is to be served to the degree to which it can be served. Whilst constitutional limitations may have the consequence that the ability to confer jurisdiction on some courts is not the mirror image of that which may be conferred on other courts, the broader purpose should be served to the degree that it can be served. 15 The legislation is remedial and should be construed liberally. It represents an arrangement amongst all the polities of Australia. Nothing in the scope and purpose of the interlocking statutes suggests that the implicit arrangement amongst the respective States to confer jurisdiction on the State courts of each other State, should be read down so as to precisely correspond to the implicit arrangement between the States, both severally and jointly, on the one hand, and the Commonwealth, on the other hand. These are parallel compacts. There is no basis for concluding that the respective State parliaments intended that there could be no differentiation in the practical operation of the two compacts. 16 I agree with Foster AJA that the Industrial Relations Act 1996 did not operate as some form of implied repeal of the Cross-Vesting Act with respect to the Industrial Commission. His Honour considers the various provisions of the Act relied on by the Defendant. This submission is quite inconsistent with "the legislative history of the cross-vesting scheme as an exercise in co-operative federalism". (James Hardie and Coy v Barry at [59] per Mason P.) Furthermore, as I said in R v Porter [2001] 53 NSWLR 354 at [59]: "There is a strong presumption that a legislature in a federal system would not alter a statute that forms part of a collaborative and uniform national scheme, save in express terms." 17 There is nothing express here.

The exercise of the discretion 18 In exercising the power under Pt 12 r2 of the Supreme Court Rules to make an order removing the proceedings to this Court, Einstein J identified one of the questions to be decided in the following terms: "What weight should be given to the fact that the proceedings sought to be cross-vested are proceedings before the Industrial Relations Commission in Court Session, a court of equivalent status to the Supreme Court of New South Wales, a court whose decisions are final and from whose decisions there is no appeal to the Court of Appeal, and a court whose jurisdiction under Part 9 of the Industrial Relations Act 1996 cannot be exercised by the Supreme Court of New South Wales?" 19 It is not necessary to answer this question in the terms in which it is expressed for the purposes of exercising the discretion to cross-vest. However, the answer propounded by Mr Archibald is correct. It should be given the appropriate weight in the circumstances of the individual case. 20 The experience of the judges of the Industrial Commission is a matter entitled to weight in the exercise of the discretion. The matters identified in the question may not be entirely irrelevant given the breadth of the discretion under the relevant statutory power. However, expressed in the way that they are in the question, I cannot conceive of a case in which such matters would be given significant weight. 21 The Industrial Commission is a court of specific statutory jurisdiction. The Supreme Court of New South Wales is a court of general jurisdiction. As set out in s22 and s23 of the Supreme Court Act 1970: "22 The Supreme Court of New South Wales as formerly established as the superior court of record of New South Wales is hereby continued. 23 The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales." 22 The jurisdiction of the Supreme Court established under Act IV c 96 and the Third Charter of Justice, which was continued in existence by the 1970 Act, encompassed the jurisdiction of numerous separate courts then extant in Great Britain including Kings Bench, Common Pleas, Exchequer, Chancery and ecclesiastical courts. Subject to the Constitution of the Commonwealth of Australia and statutes of the Commonwealth Parliament, this is a court of unconfined jurisdiction. The Commonwealth Parliament has conferred the broad range of federal jurisdiction on this Court. The national cross-vesting scheme is a grant to this court of a comprehensive range of federal and, for the first time, interstate jurisdiction. 23 Each State and Territory has a Supreme Court. The existence and jurisdiction of specialist and inferior courts varies widely from State to State. The compact amongst the States vested the power to make orders of transfer from any court or tribunal of the State in the Supreme Court of each State and Territory, rather than in each specific court or tribunal which exercises the jurisdiction. This was, no doubt, seen as ensuring that the approach to transfer would be consistent in each area of jurisdiction, even if quite different courts or tribunals exercised the jurisdiction in different States. 24 In his judgment removing the proceedings into this Court, Einstein J referred to the submissions made to him to the effect that there were "disparate approaches" by single judges of the Equity Division with respect to applications under the Cross-Vesting Act relating to proceedings instituted under s106 of the Industrial Relations Act 1996 and its predecessors. The decision which is said to be authority against such orders being made is Wood v Boral Resources (NSW) Pty Ltd (NSWSC, McLelland CJ in Eq, 28 October 1993, unreported). Decisions which are said to differ in their approach to this matter include Winron Pty Ltd v Shell Company of Australia Ltd (1996) 66 IR 64 per Young J; Bruning v Kingmill (Australia) Pty Ltd (1998) 44 NSWLR 180 per Hodgson CJ in Eq; Minproc Ltd v Killinger [1999] NSWSC 564 per Young J; Heath Group Australasia Pty Ltd v Hanning [1999] NSWSC 719 per Austin J; Macquarie Bank Ltd v Bell (1999) 93 IR 183 per Hodgson CJ in Eq; Premiers Sports Australia Pty Ltd v Dodds [2001] NSWSC 707 per Palmer J. 25 Sections 5 and 8 of the Cross-Vesting Act call for the exercise of a broad judgment. Matters of this character must depend on their own facts. I do not see any inconsistency between the decision in Wood v Boral Resources and the subsequent cases. 26 Wood v Boral Resources was instituted when the Industrial Relations Act 1991 was in effect. In the proceedings before McClelland CJ in Eq, an application was made under s275 of the 1991 Act by the Transport Workers Union of Australia on behalf of its members who owned their own trucks. They sought orders under that Act varying the contracts between Boral and these significant number of such drivers. 27 Proceedings of this character are close to the heartland of the traditional industrial jurisdiction of the Industrial Commission. The fact that the proceedings bore a distinctively industrial character was a matter entitled to substantial, and perhaps even determinative, weight in the exercise of power under the Cross-Vesting Act. The observations made by McClelland CJ in Eq are not applicable, and were not intended by his Honour to be applicable, to the quite different kind of case that has subsequently been the subject of determination, as it is in these proceedings, i.e. a case involving a senior employee, relevantly the chief executive officer, of a company. 28 This Court will be very slow to remove from the jurisdiction of the Industrial Commission a matter involving industrial disputation of the character that existed in Wood v Boral Resources. Although the unfair contracts jurisdiction under Ch 2 Pt 9 of the Industrial Relations Act 1996 is not limited to such industrial disputes, deciding which is the more appropriate forum for purposes of the cross-vesting legislation (see BankInvest AG v Seabrook (1988) 14 NSWLR 711; James Hardie and Coy v Barry at [87] and [4]) falls to be determined in a quite different light in the case of a single senior executive. 29 By the Industrial Relations Amendment (Unfair Contracts) Act 2002, a new s108A has been inserted into the Act to the following effect: "108A(1) An application cannot be made for an order under this Division if the application relates to a contract of employment under which: (a) a remuneration package that exceeds the remuneration cap is paid or received (or is payable or receivable) during the period of twelve months immediately before the application is made …, or (b) a remuneration package is paid or received (or is payable or receivable) during a period of less than twelve months immediately before the application is made … that would, if the remuneration package had been paid or received (or been payable or receivable) for a period of twelve months, have exceeded the remuneration cap. …" 30 Section 108A(3) defines "remuneration cap" as meaning $200,000, unless a greater amount is prescribed by regulation. "Remuneration package" is defined in terms of the "total value of monetary remuneration and employment benefits payable or receivable under a contract of employment". 31 The purport of this amendment is clear. It will remove the ability of the Industrial Commission to vary or set aside or vary unfair contracts in the case of, relevantly, senior executives of corporations whose total remuneration package exceeds $200,000. These amendments are not applicable to the case of Mr Finemore. However, the policy now adopted by the Parliament to restrict the jurisdiction of the Commission to persons who are more likely to be identified as workers and middle management, rather than senior executives, is based on similar considerations to that which led to the approach adopted by the Equity Division in the exercise of the discretion under the cross-vesting legislation. That approach, an approach which I endorse, is that the Court should be more ready to exercise the jurisdiction to transfer where it arises in the context of senior executives of corporations than in the case of workers. In particular, where the s106 application is only one aspect of a broader commercial dispute, the court should be more ready to exercise the jurisdiction. 32 In making the judgment for which s5 of the Cross-Vesting Act calls, in the present case, there are factors pointing in each direction. A number are referred to in the judgment of Foster AJA. 33 A matter entitled to particular weight against the making of the order is the legitimate forensic advantage which Mr Finemore would retain if the proceedings stayed in the Industrial Commission. That advantage extends beyond the fact that the judges of that Commission have particular expertise and knowledge of the jurisprudence of the Commission with respect to s106. Those judges have acquired a cast of mind which may well render them more likely to exercise the jurisdiction by reformulating the rights and obligations of a contract. A judge whose cast of mind has been determined by the exercise of the more traditional jurisdiction of the courts - to decide what the law says the rights and obligations of parties are - may well be less inclined to exercise a jurisdiction which creates and changes rights and obligations in the exercise of a broad jurisdiction to determine what is "fair". 34 The Defendant also relied on the additional expense involved in conducting the proceedings in Victoria. Furthermore, the facts, matters and circumstances to be investigated with respect to the s106 application are primarily matters that have occurred in New South Wales and with respect to which residents of New South Wales would be the principal witnesses. These are pertinent but not determinative considerations. 35 The Defendant provided submissions, at the Court's request, identifying the variations of the service agreement and employment agreement which it sought in the s106 proceedings. It is not necessary to set out these matters. Suffice it to say that the overlap between the issues raised by Mr Finemore's application in the Industrial Relations Commission and the matters in dispute in the proceedings in the Supreme Court of Victoria is in a narrow compass. There would be some overlap of evidence but there is nothing to suggest that the overlap would be substantial. The difficulty in the present case arises by reason of the Defence that has been filed in the Industrial Relations Commission. 36 The Plaintiffs have chosen to plead by way of defence in the Industrial Relations Commission the entirety of their statement of claim in the Victorian Supreme Court. The defence pleads breaches of fiduciary obligations, of the Corporations Act 2001 (Cth), of the Listing Rules and of the Trade Practices Act 1974 (Cth), in terms. It also repeats the claims made with respect to the tyre contract, to which Foster AJA refers, and certain other matters which are apparently unrelated to the matters before the Industrial Commission. 37 The Court is presented with an artificial pleading. No doubt some of the facts and matters relied upon in the Victorian proceedings would be pertinent to the proceedings in the Industrial Commission, albeit not in the way relied upon alleging specific contraventions of particular provisions with claims for consequential relief. The Defendant in these proceedings has not, however, taken any steps to ensure that the pleading in the Industrial Relations Commission raises issues in terms pertinent only to those proceedings. 38 A pleading of this character raises a suspicion that it was designed not for its stated purpose but for the purpose of being annexed to an affidavit in support of a cross-vesting application. However, the Defendant in this Court has not sought to run any case based on abuse of process or otherwise challenge the terms of the defence as pleaded. It may be that the Defendant sees some forensic advantage in the possibility that the Industrial Commission would determine matters that could create an issue estoppel for purposes of the Victorian proceedings. However, the Plaintiffs in this Court did not seek to mount a case of that character by cross-examination or otherwise. 39 The end result is that the Court is faced with a situation in which there is a complete and precise overlap between the proceedings in the Supreme Court of Victoria and the proceedings in the Industrial Commission. This is unlikely to be a common case, but it is the one with which this Court is presented. So confined, this case is a clear case for the exercise of the power under s5 of the Cross-Vesting Act. In order to ensure that there are not two sets of proceedings in which the same matters are determined, it is in the interests of justice to transfer the s106 proceedings. This consideration outweighs the factors which would support the Defendant's contentions. For these reasons I agree with the orders proposed by Foster AJA. 40 GILES JA: I have had the benefit of reading in draft the reasons of Foster AJA and the additional observations of Spigelman CJ. Agree with the former as supplemented by the latter. 41 FOSTER AJA: By their summons dated 18 February 2002 the plaintiffs sought the following orders against the defendant:- 1. An order that the proceedings commenced by the Defendant against the Plaintiffs before the Industrial Relations Commission of New South Wales in Court Session pursuant to s.106 of the Industrial Relations Act (NSW) 1996, being proceeding No. IRC 7532 of 2001, be removed to the Supreme Court of New South Wales pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987. 2. An order that upon the said proceedings No. IRC 7532 of 2001 being removed to the Supreme Court of New South Wales, the said proceedings be transferred to the Supreme Court of Victoria pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 . 42 By Notice of Motion, dated 15 February, 2002 the defendant applied for the removal of the proceedings into the Court of Appeal, pursuant to Pt 12 r 2(1)(b) of the Supreme Court Rules. By his decision given on 21 February, 2002, Einstein J, sitting in the Equity Division decided that the application should be acceded to. His Honour made the following orders:- "1. That Proceedings No. 6082 of 2001 be removed into the Court of Appeal. 2. That the questions to be decided pursuant to Part 12 rule 2 of the Supreme Court Rules (NSW) are as follows:- (i) "What weight should be given to the fact that the proceedings sought to be cross-vested are proceedings before the Industrial Relations Commission in Court Session, a court of equivalent status to the Supreme Court of New South Wales, a court whose decisions are final and from whose decisions there is no appeal to the Court of Appeal, and a court whose jurisdiction under Part 9 of the Industrial Relations Act 1996 cannot be exercised by the Supreme Court of New South Wales?" (ii) "Should the Industrial Relations Commission proceedings be removed to the Supreme Court of New South Wales and cross-vested to the Supreme Court of Victoria?" 43 In the hearing before this Court, a further question was raised, by consent, namely, whether there was jurisdiction under the Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the Act") to make the orders sought. In the circumstances, it is convenient to consider that question first. 44 Jurisdiction

The defendant, Ronald Stanley Finemore ("Mr Finemore") commenced proceedings ("the IRC Proceedings") in the Industrial Relations Commission of this State ("the Commission"), under s.106 of the Industrial Relations Act 1996 (NSW) ("the IR Act"), against the plaintiffs on 19 November 2001. It is not necessary to describe those proceedings in detail. They are based upon allegations by Mr Finemore against the plaintiff companies ("the Toll Group"), pursuant to Pt 9 of the IR Act . It is claimed that certain agreements entered into by Mr Finemore and the Toll Group were unfair to Mr Finemore at the time they were made or, since that time, have become unfair by reason of the conduct of the Toll Group. Orders are sought, pursuant to s.106 of the IR Act, for the varying of those contracts in particular ways which, it is claimed, will remove their unfair qualities. Compensation under various heads for loss of salary, loss of use of a motor vehicle, annual leave and long-service leave are also sought. As at the time of the application for cross-vesting, a number of steps had been taken in the Commission. Also, proceedings have been commenced by the Toll Group in the Supreme Court of Victoria against Mr Finemore and other defendants in the Commercial and Equity Division of the Court ("The Victorian proceedings"). They seek relief in respect of the same contracts in equity and under the Corporations Act. The object of the plaintiffs' summons is, apparently, the joinder of the IRC proceedings with the Victorian proceedings. 45 It is submitted on behalf of Mr Finemore that, because of the nature of the IRC proceedings, and because of the institutional character of the IRC, the proceedings are not, by law, amenable to removal and transfer pursuant to the Act. It is contended on behalf of the Toll Group that the relevant provisions of the Act provide the necessary jurisdiction. It is convenient, in the first instance, to refer to these provisions. 46 Sections 8 and 9 of the Act relevantly provide as follows:- "8(1) Where: (a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in: (i) a court, other than the Supreme Court, of the State; or (ii) a tribunal established by or under an Act; and (b) it appears to the Supreme Court that: (i) ….; (ii) an order should be made under this subsection in relation to the relevant proceeding so that consideration can be given to whether the relevant proceeding should be transferred to another court, the Supreme Court may, on the application of a party to the relevant proceeding or of its own motion, make an order removing the relevant proceeding to the Supreme Court. (2) Where an order is made under subsection (1) in relation to a proceeding, this Act applies in relation to the proceeding as if it were a proceeding pending in the Supreme Court. (3) …. (9) The Supreme Court: (a) may exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of the Commonwealth or a State relating to cross-vesting of jurisdiction; and (b) may hear and determine a proceeding transferred to that court under such a provision." 47 Under the heading "Transfer of proceedings" s.5(2) of the Act, relevantly, provides as follows:- "5(2) Where: (a) a proceeding (in this subsection referred to as the "relevant proceeding") is pending in the Supreme Court (in this subsection referred to as the "first court"): and (b) it appears to the first court that: (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or of a territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court; (ii) …….. (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory, the first court shall transfer the relevant proceeding to that other Supreme Court." 48 Also, in s.3 the following definition appears:- " State matter" means a matter: (a) in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State; or (b) removed to the Supreme Court under section 8. 49 Also, under the heading of "Vesting of additional jurisdiction in certain courts", it is provided as follows:- "Section 4(3) The Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters."

It is clear, in my opinion, that the Supreme Court referred to in the definition of "State matter" is, under the Act, the Supreme Court of New South Wales. 50 It is the submission of the Toll Group that these sections provide the necessary jurisdictional basis for the orders sought in the application. The IRC proceedings are relevantly "a proceeding…pending in…a Court other than the Supreme Court of the State" (s.8(1)(a)(i) and are amenable to the making of an order for removal to the Supreme Court on the basis set out in s.8(1)(b)(ii). 51 Once such an order is made, the Act, then, applies in relation to the IRC proceedings "as if it were a proceeding pending in the Supreme Court". 52 The relevant subsections of s.5(2), set out above, then apply, on the basis that the IRC proceedings are, then, "pending in the Supreme Court", with the result that jurisdiction is conferred on the Supreme Court, by that section, to transfer the IRC proceeding to the Supreme Court of Victoria. 53 This result is disputed by Mr Finemore on the basis that the special nature of the IRC proceedings and the Commission itself free them and it from this jurisdiction to transfer. 54 This submission is contrary to decisions which have been made at first instance in the Equity Division of this Court. These decisions were considered by Young J in Minproc Ltd v Killinger, NSWSC 564, Equity Division 25 May 1999, where his Honour said, in relation to applications to transfer to the Supreme Court proceedings under s.106 of the IR Act: "After some hesitation, this Court decided that there was jurisdiction to do that despite the general flavour of the Industrial Relations Act; see Winiron Pty Ltd v Shell Company of Australia Ltd (1996) 66 IR 64 and Bruning v Kingmill (Australia) Pty Ltd (1998) 44 NSWLR 180, 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. Mr Dixon in his well reasoned submissions for the defendants said that I should not follow that line of territory and referred to an earlier decision of McLelland CJ in Eq in Wood v Boral Resources (NSW) Pty Ltd - 28 October 1993. I merely record that submission and follow Bruning's case ." 55 Since Minproc, Austin J, in Heath Group Australasia Pty Limited v Hanning (1999) NSWSC 719, in a comprehensive judgment, has held that the relevant jurisdiction exists. Reference may also be made to the decision of Hodgson CJ in Eq in Macquarie Bank Ltd v Bell & Anor, (1999) NSWSC 957. 56 It is the submission of the Toll Group that these decisions should be approved in this Court and that the jurisdiction of this Court to order transfers of IRC proceedings pursuant to the Act be confirmed. 57 It is the submission of Mr Finemore that, insofar as the first instance decisions affirm the relevant jurisdiction, they should be over-ruled. This submission is based upon particular sections of the IR Act, which, it is submitted, have the effect of insulating proceedings, at least under s.106 of that Act, from the cross-vesting provisions set out above. The argument proceeds as follows. 58 The IR Act repealed the Industrial Relations Act 1991 and the Regulations made thereunder (s.405) together with the Industrial Relations Commission and the Industrial Court of New South Wales, established under that Act (Schedule 4, cls 22-23). 59 By s.145 of the IR Act a new institution, the Commission, was established, which by s.146 has the following functions:- "(a) setting remuneration and other conditions of employment, (b) resolving industrial disputes, (c) hearing and determining other industrial matters, (d) inquiring into, and reporting on, any industrial or other matter referred to it by the Minister, (e) functions conferred on it by this or any other Act or law." 60 Furthermore, by s.146(2) the Commission is required to "take into account the public interest in the exercise of its functions" and, for that purpose, to have regard to: "(a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy." 61 Particular reliance is placed upon the provisions of the IR Act providing for the establishment, functions and powers of the Commission when sitting in "Court Session". The Commission in Court Session is constituted by a judicial member or members (s.151) and (by s.152) is established "as a superior Court of Record" and "of equivalent status to the Supreme Court". 62 Under the heading "Jurisdiction of Commission in Court Session", s.153 provides as follows:- "(1) The following functions of the Commission are to be exercised only by the Commission in Court Session: (a) proceedings for an offence taken before the Commission (including proceedings for contempt), (b) proceedings for declarations of right under section 154, (c) proceedings under Part 9 of Chapter 2 (Unfair contracts), (d) proceedings under section 139 (Contravention of dispute order), (e) proceedings under Parts 3, 4 and 5 of Chapter 5 (Registration and regulation of industrial organisations), other than Division 3 of Part 4 (Election of officers), (f) proceedings under Part 1 of Chapter 7 (Breach of industrial instruments), (g) proceedings for the recovery of money under Part 2 of Chapter 7 (other than small claims under section 380), (h) proceedings on a superannuation appeal under section 40 or 88 of the Superannuation Administration Act 1996, (i) proceedings on an appeal from a member of the commission exercising the functions of the Commission in Court Session. (j) proceedings on an appeal or case stated from an Industrial magistrate or any other court, (k) any other proceedings that are, by this Act or any other Act, required to be taken before the Commission in Court Session." 63 By s.154 the Commission in Court Session is empowered to "make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction" and may do so "whether or not any consequential relief is or could be claimed". 64 The jurisdiction conferred in respect of unfair contracts is the subject of extensive provisions in Pt 9 of the IR Act. By s.105 a "contract" is defined as meaning "any contract or arrangement, or any related condition or collateral arrangement." An industrial instrument is not included. An "unfair contract" is defined as meaning a contract:- "(a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument." 65 Under the heading "Power of the Commission to declare contracts void or varied", s.106 provides as follows:- "(1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case." 66 By s 107, the Commission in Court Session, when making an order under s 106 or at a later time may make such further order as it considers appropriate for the purpose of prohibiting, absolutely or conditionally (inter alia) "any party to the contract, or any other person who is (in any way considered relevant by the Commission) associated with any such party, from entering into any specified kind of contract whereby a person performs work in an industry…..". 67 Section 108(a) indicates that Mr Finemore would be an appropriate applicant for an order under s.106, being a party to a contract. Section 109 provides that the Commission will determine an application only after "all reasonable attempts to settle the matter by conciliation have been made but have been unsuccessful". The Court is advised that conciliation, pursuant to this section, is currently being attempted. 68 By s 162, the Commission is empowered to determine its own procedure and is required (inter alia) "to act as quickly as is practicable" and is given a variety of case-management powers, which would appear to be, for practical purposes, similar to those exercised by any superior Court. By s 163(2), the Commission in Court Session, unlike the Commission acting in other areas, must apply "the rules of evidence and other formal procedures of a superior Court of Record." 69 By s 167, provision is made for the intervention, at any stage of the proceedings before the Commission, of the Minister, who may also initiate any proceedings before the Commission. Similar rights of intervention are given to the President of the Anti-Discrimination Board and a State peak council. It would appear that this right would be exercisable in relation to proceedings before the Commission in Court Session, although the section does not specifically say so. 70 Under the heading "Powers of Interpretation", s 175 provides:- "The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument)."

In argument, this section was described as conferring upon the Commission a "pendent jurisdiction". This is disputed. I shall refer to it later. 71 Under the heading "Finality of Decisions", s 179 provides:- "(1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted): (a) is final, and (b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise). (2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted. (3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission." 72 The provisions of the IR Act in relation to appeals are also relied upon. These appear in ss 187 and 188 which provide as follows:- " 187 Appeal to Full Bench from decision of Commission The following may appeal to a Full Bench of the Commission against a decision of the Commission constituted by a single member: (a) a party to the proceedings in which the decision was made, (b) an industrial organisation, or an association registered under Chapter 6, affected by the decision, (c) the Minister if the Minister considers that the public interest is, or is likely to be, affected by the decision, (d) the President of the Anti-Discrimination Board if that President considers that the decision is inconsistent with the principles contained in the Anti-Discrimination Act 1977.

(1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister."

(It would appear, pursuant to s 156(3) that in an appeal from the Commission in Court Session, the Full Bench must include only judicial members). 73 By ss 189, 190 and 190A, provision is made for the time in which appeals must be brought, the stay of decisions appealed against and interlocutory proceedings relating to an appeal. Section 191 provides that the appeal is not to be by way of a new hearing but "is to be determined on the evidence and material adduced in relation to the decision appealed against", subject to the Full Bench allowing further evidence by leave on special grounds. It is further provided by s 191(3) that:- "To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received." 74 By s 192, the following powers of appeal are accorded to a Full Bench of the Commission. This section provides as follows:- "(1) On an appeal under this Part to a Full Bench of the Commission, the Full Bench may (in accordance with this Act): (a) confirm, quash or vary the decision of the Commission concerned, or (b) direct a member of the Commission to take further action under this Act to carry its decision on the appeal into effect, or (c) refer the matter back to the member of the Commission, with such directions or recommendations as the Full Bench considers appropriate. The Full Bench may determine a part of the matter and refer the remainder back to the member of the Commission. (2) The Full Bench may direct that its decision on an appeal under this Part take effect as from any specified date after the lodging of the original application relating to the decision." 75 It is the contention of Mr Finemore that, when regard is paid to these provisions of the IR Act, it must follow that the IRC proceedings are not amenable to transfer into the Supreme Court of New South Wales under the provisions of the Act, as they are brought in a jurisdiction which the legislature has established as being one fully self-contained and totally independent of the Supreme Court of New South Wales, in respect of which it enjoys equivalent status. In this regard, reliance was placed upon the decision of McLelland CJ in Eq. In Wood & Ors v Boral Resources (NSW) Pty Ltd (unreported, 28 October 1993), to which reference has been made above. Although, this decision has not been followed in later first instance decisions in the Equity Division, it is submitted that it should now be followed in preference to those decisions. 76 McLelland CJ in Eq had before him (inter alia) an application for an order pursuant to s 8 of the Act that certain Industrial Court proceedings be removed to the Supreme Court and that an order be then made pursuant to s 5(1) of the Act that the Industrial Court proceedings (when so removed) be transferred to the Federal Court. The proceedings had, of course, been brought before the old Industrial Court established under the provisions of the previous legislation. However, it does not appear that this is a relevant consideration. It was argued before his Honour that a subsequent transfer to the Federal Court would be inappropriate because the Industrial Court proceedings involved the exercise of powers of a non-judicial kind. His Honour did not find it necessary, or appropriate, to deal with this submission but decided the case on the basis of a second submission that "it would be unjust and inappropriate for the Industrial Court proceedings to be transferred to the Federal Court". On the basis of this ground he dismissed the application, giving the following reasons:- " In the first place, the jurisdiction under s 275 is, by the Industrial Relations Act, conferred solely on a specialist Court, namely the Industrial Court, established primarily to deal with matters relating to industrial relations. The importance of the specialised nature of the Court is emphasised by the use of such a wide criterion as "against the public interest" in paragraph (c) of ss (1), reinforced by the inclusion in the content of that expression of the matters described in ss (2), and also by the additional powers in proceedings under s 275 conferred on the Industrial Court by s 276. It is apparent that the legislature considered it appropriate that the wide discretionary powers arising under s 275 should, at least primarily, be exercised by a Court whose members had specialised knowledge and experience in the area of industrial relations. It is significant that the powers of the Industrial Court under s 275 cannot be exercised by any other New South Wales court including the Supreme Court. It would therefore be somewhat 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 is highly relevant, to another Court of relevantly un-specialised jurisdiction or composition, whose eligibility to receive such a transfer depends upon the fact that it is not a New South Wales Court." 77 His Honour also accepted other submissions in opposition to the proposed transfer. There is no need to refer to them, as the passage cited is the one relied upon and is also the subject of consideration in the other decisions, to which reference has been made. It may be noted, however, that his Honour does not appear, in this passage, to be holding that the proceedings in the Industrial Court were not, as a matter of law, amenable to orders under the Act for their removal and transfer. His reference to such a transfer being "somewhat anomalous" does not go so far. However, the passage picks-up the major features of the Industrial Court and of proceedings brought before it, emphasising their "specialist" nature, the criterion of the public interest and the wide discretionary powers given to that Court, requiring, in their exercise, specialised knowledge and experience in the area of industrial relations. The fact that the Supreme Court could not itself exercise these powers was also the subject of emphasis, as was the fact that a transfer from the Supreme Court to a Court outside the New South Wales judicial system would confer upon that Court a jurisdiction, which the Supreme Court could not, itself, exercise. 78 Even though it would seem that his Honour was not dealing with the question of jurisdiction, the passage cited is relied upon as providing significant reasons why it should be held that the IRC proceedings do not come within the Act. These reasons, together with others, were relied upon by counsel for Mr Finemore. I shall now consider and discuss them. I do so, in the context of counsel's main submission that the legislature, in enacting the IR Act in 1996 intended to effect a pro tanto repeal of the Act, by impliedly excluding from its operation the Commission and proceedings brought within its jurisdiction (Goodwin v Phillips (1908) 7 CLR 1 pp 7,10,11,14 & 15). Such implied repeal would have the effect of excluding the Commission from being a "court" of the State in s 8(1)(a)(i) of the Act or require that matters coming before it not be comprehended within the term "proceedings" or "relevant proceeding" where used in that section. 79 Counsel relied upon the specialist nature of the Commission. He emphasised that its members, on a daily basis, dealt with industrial matters falling within its jurisdiction. He referred to the fact that, over the years since its introduction as a self-contained arbitral and curial system in this State, it has developed a significant level of expertise in what has been described as "core industrial matters" and has also developed a significant body of jurisprudence relating to its jurisdiction. This expertise and familiarity with a specialised body of case law would not admit of easy or efficient transference to judges sitting in another jurisdiction, let alone an interstate jurisdiction. Counsel referred to the fact that the State of Victoria does not possess a court exercising a comparable jurisdiction to that exercised by the Commission; nor does it have legislation similar to the Contracts Review Act of this State. Whilst appreciating the force of these submissions, I am not persuaded by them. It is not uncommon for Courts, especially with the assistance of competent and experienced counsel, when required, to effectively deal with problems associated with jurisdictional and jurisprudential areas with which they are not normally involved. The Commission's jurisdiction and jurisprudence may be specialist but it is not occult. 80 Moreover, it is clear that not all matters coming before the Commission involve questions with broad industrial implications and public interest ramifications. Obviously, many relate to quite circumscribed disputes between employer and employee involving the contract of employment. Such cases should present no problems to courts of general jurisdiction. 81 Reliance was also placed on the provisions permitting initiation by the Minister and his intervention in proceedings before the Commission as being indicative of a legislative intention to insulate it and its proceedings from the operation of the Act. A similar submission was made in respect of the President of the Anti-Discrimination Board and of certain industrial councils. Emphasis was also placed upon the rights of the Minister, the President and an industrial organisation to appeal to the Full Bench against the decision of a single member, the Minister in circumstances where he or she considers that the public interest is or is likely to be affected by the decision, the President in the case of his or her consideration that the decision is inconsistent with the principles contained in the Anti-Discrimination Act 1977. Counsel for Mr Finemore asked, rhetorically, whether the legislature, in 1996, could have intended that the relevant New South Wales Minister should appear before the Supreme Court of Western Australia, in a removed and cross-vested proceeding of the Commission, to argue, in an appeal from a single judge of that Court to its appellate division, that the decision at first instance should be overturned on the basis that it was contrary to the public interest of the State of New South Wales; similarly, with the President of the Anti-Discrimination Board, or the appropriate officer of a New South Wales State industrial organisation. 82 In the same vein, were submissions relating to the Commission's obligations under s 106 of the IRC Act to consider matters of New South Wales public interest and the effect of the subject contract or contracts upon "providing a sufficient and trained labour force." Again, these are forceful arguments; but they do not persuade me. They may provide significant reasons why, in a particular case, removal and cross-vesting should not be ordered. They do not, however, require a finding that this Court has no jurisdiction to make such orders. 83 Counsel also relied upon problems submitted to arise from the appellate provisions of the IRC Act. These provisions are set out above. I have referred to some of them already. It is to be noted that appeals to the Full Bench of the IRC are, pursuant to s 188 of the IRC Act, only by leave of the Full Bench and then only if the matter is of such importance that leave should be granted in the public interest, unless the appeal is brought by the Minister. It is submitted that the legislature, in so confining appeals within the organisation of the Commission, is indicating an intention to remove appellate proceedings from the operation of the Act. Again, I am not persuaded. If a particular case necessarily involves significant difficulties in relation to its being dealt with in the appellate processes of a receiving interstate Supreme Court, then this may furnish a compelling argument against the exercise of discretion to remove and cross-vest. It does not, in my view, exclude the jurisdiction to do so. In my opinion, an interstate Supreme Court receiving a cross-vested matter from the Commission can mould its own appeal process to take into account and give effect to the restrictions contemplated by s 188 of the IRC Act. The same considerations apply to the powers of a Full Bench pursuant to s 192; a Supreme Court receiving a cross-vested matter can mould its procedure to conform, as closely as possible, to the requirements of that section. 84 Counsel also relied upon the provisions of s 153 of the IRC Act. I agree, with respect, with the view taken of the effect of that section by Austin J, in Heath v Hanning (1999) NSWSC 719, where his Honour held that the section is not intended to confer upon the IRC powers exclusive of the powers of the Supreme Court under the Act. It deals only with the allocation of powers within the Commission itself. 85 It was also argued on behalf of Mr Finemore that s 179 of the IRC Act, set out above, indicates a clear legislative intention to exclude IRC proceedings from the operation of the Act. Reliance was placed upon the fact that the present section was the result of an amendment in 1995, made with the express intention, as indicated in the Second Reading Speech, of providing "a bolstered version of the privative clause presently contained within the 1991 Act." It was said, in the Speech, that "the Government is of the view that where a specialist Court or Tribunal is established to deal with a particular area of the law, then that is the forum where the particular body of law ordinarily should be determined." 86 It appears that the amendment was enacted to overcome, if possible, the decision in Walker v Industrial Court of New South Wales & Anor (1994) 53 IR 121 where it had been held that this Court had "jurisdiction to grant relief in the nature of mandamus, prohibition, or certiorari, in respect of orders under s 88F, which either amount to a constructive refusal to exercise jurisdiction or to an exercise of jurisdiction beyond lawful power." (See, also Woolworths Ltd v Hawke (1998) 45 NSWLR 13). It is unnecessary to express a view as to whether s 179, in its present form, is effective to oust, in its entirety, the supervisory jurisdiction of this Court. (R. v Hickman: ex parte Fox and Clinton (1945) 70 CLR 598; Darling Casino Ltd v NSW Casino Control Authority (1996-1997) 191 CLR 602). I am not persuaded, however, that it is effective to exclude the jurisdiction of the Supreme Court to make orders, under the provisions of the Act, relating to proceedings commenced in the Commission. The section does not, in terms, refer to the powers of the Supreme Court under the Act, nor does it appear to refer to proceedings in the Commission, as opposed to orders or decisions of the Commission determinative of those proceedings in whole or in part. Moreover, it may be noted that the portion of the second reading speech set out above does not indicate an intention to confer a totally exclusive jurisdiction. It speaks of "the forum where the particular body of law ordinarily should be determined." 87 Counsel for Mr Finemore also advanced a submission based upon the definition of "State matter" referred to above and the provisions of s 4 of the Act. Section 4(3) has been set-out above. Before the decision in Re Wakim: ex parte McNally (1999) 198 CLR 511, it had been provided, by s 4(1) that the "Federal Court has and may exercise original and appellate jurisdiction with respect to State matters." A similar provision was made in respect of the Family Court by s 4(2). After Wakim these two sub-sections were repealed. The submission was made that, quite apart from the lack of constitutional power which led to the decision in Wakim, the Federal Courts in question were never able to exercise arbitral power, as opposed to judicial power, because of the constraints imposed by Chapter III of the Constitution of the Commonwealth. As the jurisdiction of the Commission in Court Session involved the exercise of arbitral power, it was not part of the legislature's intention to invest the Federal Courts with jurisdiction under s 106, as they could not exercise it. Accordingly, so the argument ran, the jurisdiction "with respect to State matters" conferred on the Supreme Court of another State by s 4(3) was intended only to confer judicial and not arbitral power, with the result that proceedings under s 106 were not, at any stage, covered by the Act. 88 This submission should, in my opinion, be rejected. It is quite reasonable to assume that the legislative intention, sought to be effectuated by the enactment of s 4, was to confer upon the Federal Courts the full jurisdiction of the Supreme Court which would include, where appropriate, arbitral jurisdiction. Wakim decided that the Commonwealth lacked power to enact, as the reciprocal Commonwealth legislation had purported to do, that the Federal Courts could receive this jurisdiction sought to be granted by State legislation. It was of no consequence whether the jurisdiction sought to be granted and received through reciprocal legislation contained arbitral as well as judicial components. The result, in my view, is that s 4(3), which remains, is a valid conferral by the legislature of this State of original and appellate jurisdiction upon the Supreme Court of another State, which jurisdiction, if appropriate, relates also to arbitral functions. Accordingly, when read with other relevant sections to which reference has already been made, it is effective to confer jurisdiction with respect to proceedings in the Commission brought under s 106 of the IR Act. 89 Accordingly, I am of the opinion that the submissions, considered above, cannot require that this Court hold that the Supreme Court of New South Wales lacks jurisdiction to remove proceedings from the Commission to it and then transfer those proceedings to the Supreme Court of another State or Territory, in accordance with the relevant sections of the Act. No pro tanto repeal of those sections has been effected by the enactment, in 1996, of the IR Act. 90 Moreover, regard should be paid to what Street CJ said in Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711at 713 in respect of the uniform cross-vesting legislation, namely that:- "The introduction of this scheme is a significant move towards providing throughout our nation the services of an integrated court system transcending the boundaries, both geographic and jurisdictional, that have in the past obstructed the courts in meeting the requirements of the Australian public." 91 In view of the nationwide significance of this legislation repeal or amendment of any of its provisions would require, in my opinion, the introduction in subsequent legislation of words clearly intended to effect this result. There are no such words in the IR Act and for that reason, as well as the other reasons to which I have adverted, I am satisfied that jurisdiction exists to make the orders sought in the application, the subject of this appeal. Accordingly, I am of the view that the decisions referred to in paragraphs 54 and 55 of these reasons should be approved and followed. 92 Discretion

The question is, then, whether as a matter of discretion, the orders sought should be made. I turn to consider this question. I note, at the outset, that all the considerations to which I have made reference in relation to the question of jurisdiction are, in themselves, appropriate considerations in relation to the exercise of discretion. I also note that the proceedings sought to be removed are not such as to require considerations relating to the state of the economy of New South Wales nor the public interest. Also, there is no question of the intervention in the proceedings of the Minister or the President or any industrial organisation. The general comment can be made that these proceedings do not involve the exercise of the core industrial jurisdiction of the Commission. 93 The question for determination, as I see it, is simply whether the interests of justice require that Mr Finemore's proceedings in the Commission be removed to this Court and then transferred to the Supreme Court of Victoria to be heard with the proceedings commenced by the Toll Group in that Court against Mr Finemore as defendant. The Court has been provided with considerable information as to the nature of the proceedings in Victoria and the proceedings in the Commission. It will be necessary to refer to aspects of each proceedings. It may be noted that an application to the Supreme Court of Victoria for the transfer of the Toll Group's proceedings in that Court to the Supreme Court of this State, has been refused. 94 The proceedings brought in Victoria against Mr Finemore and two other defendants were commenced in the Commercial and Equity Division of the Supreme Court of Victoria on 10 October 2001 by Writ and Endorsement of Claim and Summons for Directions returnable before the Honourable Justice Warren on 19 October 2001. Pursuant to directions given by her Honour a Statement of Claim was served on Mr Finemore on 19 November 2001. The Statement of Claim is a lengthy document making a number of allegations against Mr Finemore and the other defendants. In the course of her judgment refusing Mr Finemore's application that the Victorian proceedings be transferred to the Supreme Court of New South Wales, her Honour summarised the claims made in the Statement of Claim. It is convenient to include her Honour's summary in these reasons. It reads as follows:- "3. The plaintiffs are Toll (FHL) Ltd ("FHL") and two of its wholly owned subsidiaries FPL P/L and Resarta P/L. the defendants are Ronald Stanley Finemore and Riverina Bandag P/L and Michelin Australia P/L. Mr Finemore is a director of all the plaintiff companies and a director of the second defendant, Riverina Bandag P/L. 4. In essence, the plaintiffs claim that a number of contracts were entered into by them with the defendants that were detrimental to their interests and improperly beneficial to Mr Finemore and his interests. The plaintiffs allege that by virtue of his directorships of the plaintiff companies Mr Finemore is in breach of directors' duties owed to the plaintiffs including duties under the Corporations Law (now the Corporations Act). 5. The plaintiffs claim other breaches of the Corporations Law by the defendants including breach of the requirement to engage the expert advice reasonable in the circumstances (s 243K Corporations Law ); failure to obtain shareholder approval in cases of termination payments (ss 237, 200B and 200C Corporations Law ; failure to obtain shareholder approval for related party transactions in breach of the related party provisions; s 234H, and 208 Corporations Law ); and failure to comply with Listing Rule 10.19 of the rules of the Australian Stock Exchange. 6. The plaintiffs' claim against Riverina Bandag P/L and Michelin Australia P/L relates to an alleged agreement to supply tyres to FHL. The plaintiffs claim misleading and deceptive conduct in breach of the Trade Practices Act 1974 and the Fair Trading Act 1987. The plaintiffs also allege negligence against the defendants. 7. The plaintiffs allege four agreements that provide the foundation of their various claims:- (1) A service agreement ("the Service Agreement") between Resarta P/L and FHL ("the Resarta agreement") under which Resarta supplied FHL with the services of Mr Finemore to act as FHL's Chairman of the Board. Resarta were to receive $46,224,12.00 (?) a month and Mr Finemore was eligible for a termination bonus of $1,307,342.00. The plaintiffs allege that both FHL and Mr Finemore received legal advice that this transaction was not in the interests of FHL and contrary to the provisions of the then Corporations Law. (2) A call option deed over shares between FHL and Mr Finemore under which in consideration of $1.00 Mr Finemore was granted an option to purchase for $1,307,342.40 one ordinary share in Resarta, to be transferred to FHL upon the exercise of the option and all of FHL's right, title and interest in an existent loan of $1,307,342.40 from FHL to Resarta. (3) An employment agreement between Mr Finemore and Resarta under which Mr Finemore received a salary of $464,914.22 per annum and a termination Bonus Package of $1,307.342.46. (4) An agreement ("the alleged agreement") between Mr Finemore and FHL. The plaintiffs allege Mr Finemore agreed not to exercise his right to terminate under the Service Agreement and FHL agreed, first on behalf of Resarta in effect to preserve its assets, and secondly on its part to indemnify Mr Finemore for any loss he may suffer (e.g. any tax loss was what was primarily contemplated) arising out of any of the above agreements. 8. The plaintiffs claim against all defendants declaratory relief, equitable compensation and damages including damages under ss.82 and 87 of the Trade practices Act , s.159 of the Fair Trading Act 1999 (Vic) and ss.68 and 72 of the Fair Trading Act 1987 (NSW) . The plaintiffs claim against Mr Finemore an order for compensation pursuant to s 1317H, alternatively, s 1317HD(1) of the Corporations Act." 95 On 19 November 2001, Mr Finemore commenced proceedings in the Commission for relief under s 106 of the IR Act. It is plain that those proceedings relate to the same areas of fact, including the relevant agreements, as the proceedings in Victoria. In the proceedings orders are sought that the service agreement and the employment agreement were unfair at the time they were made or have become unfair by reason of the conduct of the Toll Companies and the circumstances of the parties. A similar order is sought in respect of the call option deed and letter agreement. Consequential orders varying the agreements are sought. These variations are set out in considerable detail in Mr Finemore's Summons for Relief. The Court was not taken, in argument, to the specific alterations sought by Mr Finemore, nor, except in general terms, to the allegations of unfairness upon which he seeks to rely. However, the orders that are sought and the grounds for their making sufficiently indicate, for present purposes, the general nature of his claim and the issues which would be agitated in the proceedings. The orders which are sought include the following:- "An order that the Respondents pay to the Applicant: (a) Compensation in the sum of $1,307.342.40 net of all taxation and other dues payable by the Applicant; (b) Compensation for salary at the rate of $579,431.40 per annum for the period between 2 July 2001 to 25 November 2004 less any salary paid to the Applicant since 2 July 2001; (c) Compensation for the loss of the use of a motor vehicle between 2 July 2001 and 25 November 2004 less the value of such use of the motor vehicle as the Applicant has had since 2 July 2001; (d) Compensation for annual leave due to the Applicant as at 2 July 2001 calculated at the rate of $579,431.40 per annum less any annual leave payments made to the Applicant since 2 July 2001; (e) Compensation for long service leave due to the Applicant as at 2 July 2001 calculated at the rate of $579,431.40 per annum less any long service leave payments made to the Applicant since 2 July 2001; (f) In the event that FHL does not, within 7 days of judgment, transfer to the Applicant all its right, title and interest in Resarta and deliver to the Applicant a duly executed Deed of Assignment of the Loan Interest as defined in the Call Option Deed, provided at the time that Resarta is the unencumbered legal owner of the Property as defined in the Summons pay to the Applicant: (i) an amount representing the value of any contributions made by or on behalf of the Applicant to the purchase of the Property (as defined in this Summons); (ii) any monies expended by the Applicant in connection with the Property (as defined in this Summons); and (iii) an amount representing the difference between the value of the Property as at the date of judgment and $1,307,342.40, plus 10% of such difference (provided that the value of the Property is greater than $1,307,342.40). 7. Such further or other compensation as the Commission considers just. 8. Interest. 9. Costs." 96 The supporting grounds are extensive. There is no need to set them out in these reasons. A reading of them sufficiently indicates that they raise factual matters, which do not involve considerations of an industrial nature of the type likely to arise in the exercise by the Commission of its core industrial jurisdiction. In my opinion, they are all factual issues of a type regularly dealt with in the Equity and Commercial Divisions of State Supreme Courts. A consideration of them, in my opinion, reveals no reason why they should not be determined along with the issues raised in the Victorian proceedings. The hearing and disposal of the issues in the one proceedings should not be productive of any insuperable problems in case management. 97 As the decision has been made that the Victorian proceedings will remain in the Victorian Supreme Court, it is clear that if no transfer of Mr Finemore's IRC proceedings takes place, there will be the usual problems of duplication and potential conflict of decisions, arising from related proceedings being heard in two different jurisdictions; the very problems that the cross-vesting legislation was designed to avoid. If no transfer order is made, the Victorian Supreme Court will have no jurisdiction to deal with the type of orders sought by Mr Finemore in the IRC proceedings. These orders are dependent upon the jurisdiction granted by the IR Act. No doubt some of the allegations that Mr Finemore would wish to make in support of those orders would be relevant by way of defence to the claims made against him and the other defendants in the Victorian proceedings. However, there would not be complete jurisdiction in the Victorian Supreme Court to dispose of all the issues raised between the parties to the proceedings. 98 The same problems arise in relation to the IRC proceedings. I note that the plaintiffs in the Victorian proceedings have pleaded, by way of defence, in the IRC proceedings all the allegations that are made against Mr Finemore in the Victorian proceeding. Accordingly, the Commission would be seised of those issues in Mr Finemore's proceedings. However, in the event of its finding those issues in favour of the plaintiffs it would not have the power to make the orders which are sought at equity and under the Corporations Law which are sought in the Victorian proceedings. In this regard, I reject the submissions made on behalf of Mr Finemore that s 175 of the IR Act, set out above, provides a pendent or accrued jurisdiction, capable of basing such orders. In my opinion, it does no more than provide an interpretative jurisdiction in respect of the materials referred to in it. 99 Information has been placed before this Court as to the relative states of preparation of the proceedings in each jurisdiction. I do not need to refer to this information. In my view, the most significant feature of the case is that, as things stand, the only Court which can deal with all the issues between these parties is the Victorian Supreme Court, consequent upon the transfer to it of the IRC proceedings, which transfer necessarily carries with it the jurisdiction to make the orders sought by Mr Finemore, if he establishes entitlement to them. 100 In my opinion, therefore, the Applicants have established their entitlement to the making of the orders sought in the Summons which has been referred to this Court. I propose that those orders be made and that the Respondent pay the costs of the proceedings in this Court and in the Court below. *****************

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"D" Jurisdiction of Courts (Cross-Vesting) Act 1987(NSW)

Fair Trading Act 1999(Vic)

Trade Practices Act 1974(Cth)

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