Secretary of the Treasury v Public Service Association and Professional Officers' Association Amalgamated Union of NSW

Overview 1This matter concerns an application by the appellants for leave to amend an application for leave to appeal and appeal against a decision of Boland J in Re Crown Employees Wages Staff (Rates of Pay) Award 2011 (No 3) [2013] NSWIRComm 109, which appeal was filed on 19 December 2013. 2That application for leave to appeal and appeal was the subject of proceedings before the Commission on 24 December 2013 and 30 January 2014. A decision concerning an application for a stay of the appeal and a stay of the orders made at first instance was handed down on 12 February 2014: Secretary of the Treasury & ors v Public Service Association and Professional Officers' Association Amalgamated Union of NSW & ors [2014] NSWIRComm 2. 3Relevantly to the present application, that decision granted a stay of the appeal until the determination of proceedings before the New South Wales Court of Appeal in which the appellants had sought relief in the nature of prerogative relief. 4The proceedings before the New South Wales Court of Appeal have not been determined. Accordingly, the stay granted by the Commission continues to operate. 5What is now sought by the appellants by a Notice of Motion filed 11 March 2014, in practical terms, is the lifting of the stay for the purpose of effecting an amendment to the appeal and the reinstitution of the stay. 6That course was opposed by the respondents who asserted prejudice and raised a specific concern that delay would adversely and, it was submitted, potentially irreversibly affect their members' ability to obtain retrospectively effective pay increases if they were successful in the New South Wales Court of Appeal and, as necessary, before the Commission. 7For reason that it is of procedural importance to provide this decision and the reasons therefor quickly, we do not here rehearse all the arguments advanced by the parties. They have, of course, been assessed in forming the view to which the Full Bench has come.

The amendments sought to be effected 8The appellants sought leave to amend on the basis that two new matters to be agitated had been identified as essential to the appeal. 9These were, it was said, first, that the Judge at first instance erred in finding that the evidence of the chief witness for the appellants, a senior Treasury official, could not be treated as independent or impartial evidence because the official was an employee of the first appellant. 10Secondly, it was said that the Judge at first instance fell into error akin to jurisdictional error in using parliamentary transcripts for a purpose other than statutory interpretation, so breaching the doctrine of parliamentary privilege. 11These points were characterised by the parties in oral argument and submissions as 'the evidence point' and 'the jurisdictional point' respectively and we will use those terms for convenience in developing this decision.

The nature and effect of the amendments sought 12It is immediately apparent that these new matters change the nature of the appeal as it is sought to be argued most substantially. 13The Commission was, in proceedings on both 24 December and 30 January, assured by the appellants in repeated and unequivocal terms that the appeal was not a merits appeal. It is now, wholly contrary to those repeated and express assurances, sought that the appeal be argued as a merits appeal as well as an appeal agitating what is in the nature of a jurisdictional question not previously raised. 14The views formed by the Commission and expressed in its earlier decision turned, in part at least, on the submissions made by the appellants at that time. The respondents contended that their approach to the stay was conditional upon the direction taken by the appellants on the appeal (although it should be noted that the respondents' approach before the Commission was, in any event, one of general opposition to all aspects of the appeal). 15An application to amend an appeal, on such fundamental terms, and so as to include elements expressly eschewed by the appellants when the appeal was earlier before the Commission is, to say the least, unusual. 16It was said, and affidavit evidence was advanced in support of this contention, that these new elements of the appeal had only been identified very recently, upon the advice provided by fresh senior counsel brought into the matter. 17That evidence was unchallenged and we do not doubt that contention as a matter of fact. 18That does not of itself, however, satisfy the requirements for a grant of leave to amend.

Principles on leave to amend 19In considering an application for amendment, the starting point is that the Commission operates subject to the provisions of the Civil Procedure Act 2005 ('the CP Act') and (in part) the rules dependent therefrom. 20The fundamental proposition is then that, pursuant to s 64(1) of the CP Act, the Commission may order that any document be amended, and further, pursuant to s 64(2), that amendments are to be made for the purpose of determining the real questions raised by the proceedings. 21Those provisions do not, however, operate in a vacuum. Subsection 57(1)(a) of the CP Act requires that the Commission have regard to the just determination of proceedings, and s 58(1), that it have regard to the dictates of justice in making any procedural order. 22As is clear enough on their face, those statutory provisions are not to be read as providing parties with an unfettered right to amend: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 46; (2009) 239 CLR 175 at [98]. 23First, those provisions are to be read in a purposive sense having regard to the operation of the CP Act as a whole, and the duty on parties in their conduct of proceedings to facilitate the purposes of the CP Act: Warth v Lafsky [2014] NSWCA 94 at [76] and [80]. 24Secondly, those provisions in matters before the Commission are to be read in the light of the provisions of the Industrial Relations Act 1996 ('the Act') and in particular s 162(2)(a) of the Act. That subsection expressly enjoins the Commission to 'act as quickly as practicable'. 25Section 162 of the Act and, in particular, s 162(2)(a) is not, in our view, to be understood to operate in the same manner as the general exhortations to quick and efficient disposition of matters that appear in statutes directing the conduct of courts generally, including the CP Act. Those provisions of the CP Act relevantly apply in any event to the Commission. 26Subsection 162(2)(a) does something more. It sets out an overriding first principle as to the operation of this Commission. It operates substantively, not merely procedurally. 27What s162(2)(a) both prescribes and recognises is that it is the essence of this Commission's jurisprudence and practice, as an industrial tribunal, to act quickly and without delay. 28As a statutory statement of first principle, s162(2)(a) affects all other provisions of the Act, as all provisions are to be read in context and construed in a purposive sense: Certain Lloyd's Underwriters and Underwriters Subscribing to Contract No IHOOAAQS v Cross (2012) 293 ALR 412; [2012] HCA 56 and Director of Public Employment (by her agent the Commissioner of NSW Fire Brigades) and New South Wales Fire Brigades Employees' Union [2008] NSWIRComm 158; (2008) 180 IR 170. The fulfilment of the requirements of s 162(2)(a) is essential to the attainment of the objectives of the Act and, in particular, the objectives expressed in subs 3(a), (b), (e), (g) and (h). In any event, s 162(2) is expressed in a manner only consistent with it applying to all proceedings before the Commission. 29An application which will cause or has a capacity to occasion substantial delay, as this application can certainly be characterised, faces significant difficulty for that overriding jurisprudential reason, leaving alone any immediate practical concerns attaching to the application itself, unless the dictates of justice compel some amelioration of such an outcome.

Consideration of the application to amend 30The circumstance in which this application is made is unusual, if not to say regrettable. 31The appellants have been represented since the institution of the appeal proceedings last year by senior counsel and significantly experienced junior counsel and solicitors. While senior counsel representing the appellants in the matter have changed, the appellants' other advisors have not. That a matter now said to be fundamental to the success of the appeal, and indeed changing the entire nature of the appeal, should now be advanced having been, apparently, overlooked for over three months is not only remarkable but justifiably occasions complaint from the respondents going to prejudice, which is an element of the determination of a just disposition of the application: Aon Risk Services loc cit at [114]. 32We now, however, turn to the two new matters sought to be agitated on appeal and, therefore, the subject of the application for leave to amend. 33Each of the bases advanced for amendment must be discretely tested against the principles set out above. In particular, the questions of delay and prejudice must be addressed.

The issue concerning parliamentary privilege 34As to the issue concerning parliamentary privilege, we accept, as senior counsel for the intervenor submitted, that this issue, now raised for the first time by the appellants, has, if it is correct, the capacity to affect the substance of the appeal regardless of where the point is taken. 35It seems to us that, if a challenge to the Commission's jurisdiction or a question of law is agitated, which is on its face arguable and not merely fanciful, it is properly regarded as a real issue between the parties. It will, absent some powerful countervailing proposition, warrant being heard in the interests of justice, even if it is agitated at a time that requires amendment to permit it to be heard. For that reason this element of the application falls outside the general premise in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, called in aid by the respondents. 36Further, having regard to the essential obligation imposed on the Commission by s 162(2)(a), this element of the application does not appear to us to have a capacity to substantially prolong or delay proceedings. 37In this aspect of the application, and subject to what we say below, it seems to us that amendment must be permitted, despite our concerns about the manner in which the application to amend has come about.

The point concerning evidence 38As to the evidentiary point, it is apparent that to agitate this issue now runs entirely against the repeated adamant assurances given to the Commission by senior counsel then appearing for the appellants that a merits appeal, to use that characterisation, was in no way contemplated. We further note that the question of the weight of the evidence of the witness was as least mentioned by senior counsel for the respondents in the first instance proceedings, so it was not a matter beyond any contemplation in consideration of the initial framing of the appeal. 39Even more importantly, absent anything else the evidentiary point has, on its face, a potential capacity to cause significant delay. 40And that is so in circumstances where, when the evidentiary proposition itself is tested, at least on a preliminary basis as is appropriate in considering whether to grant leave to amend an appeal so that the real issues between the parties can be ventilated, it appears not to be as strong a point as the parliamentary privilege contention. 41Treasury officials have over many years given evidence to this Commission concerning economic matters which has been accepted as authoritative and independent and we have no doubt that that practice will continue. 42In [103] of the decision under appeal, Boland J certainly expressed the view that the witness evidence in question was not to be treated as independent or impartial. However, when one reads the subsequent 64 paragraphs of the decision, his Honour goes on to undertake a lengthy analysis of the economic evidence given by, inter alia, that witness. 43In the balancing exercise here required, and particularly having regard to the essential principle that the Commission will act quickly, leave to amend so as to permit agitation of the evidentiary point, as we say above absent anything else, might be thought unlikely to be granted. 44However, for reasons which we now turn to, we have decided to grant leave in respect of this point as well as with respect to the point concerning parliamentary privilege.

Considerations of prejudice 45Over and above the submissions they pressed concerning the effect of delay on possible further payments to their members, the respondents submitted that any further delay may prejudice applications for subsequent increases which have, in part at least, already been filed. They submitted that, if the current proceedings are not determined before 1 July 2014, an irredeemable prejudice may arise because backdated increases may not be awarded, given the effect of cl 6(1)(e) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 ('the regulation'). It is apparent from cl 6(2) of the Regulation that, absent agreement of the parties or what are deemed to be 'exceptional circumstances', the regulation will have that effect. 46It was further put by the respondents that another form of prejudice may arise in that, if the new salary rates are not determined by 1 July 2014, the calculation of the next round of increases will be from a base which does not include what the respondents submit should be the final salary outcomes for the 2013 round of increases.

Stay on terms 47These concerns appeared to us to be real and not fanciful. Accordingly, the Commission raised with the parties the possibility of conditions being imposed on any continuation of the stay of the appeal, whether by a formulation imposed by the Commission in orders or by an undertaking. 48Senior counsel for the appellants sought time to obtain instructions on this matter. 49On 11 April 2014 the appellants through their counsel provided an undertaking to the Commission in the following terms: If claims for increases in remuneration are made by the PSA to apply on and from the first pay period on or after 1 July 2014, for those groups of public sector employees covered by those industrial instruments subject to the ongoing 2013 matter (IRC No 257 of 2013 and Ors), the Secretary will consent to those increases being able to apply from the first pay period on or after 1 July 2014, such operative date unconstrained by clause 6(1)(e) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011. 50The undertaking was expressly said to be provided on behalf of all the appellants. 51The respondents, in submissions provided on 28 April 2014, repeated the earlier argument that any capacity for delay was unacceptable, which we have taken into account, but made three further relevant points. 52The first was that the undertaking referred only to claims for increases in remuneration made by the PSA, rather than to claims by all union parties to awards subject to the appeal proceedings. 53The second was that the phrase 'If claims for increases in remuneration are made...' which begins the undertaking could be thought to refer only to those claims already formally made. 54The third was that the undertaking on its face applies only to public sector employees covered by awards directly the subject of the appeal proceedings, where other Government employers, including the Audit Office and Transport NSW, are party to award variation applications which are being dealt with separately to those before Boland J and are, therefore, not within the bounds of the appeal. 55On the afternoon of 29 April 2014 the Commission received from the appellants a revised undertaking, said to be provided in response to the matters raised by the respondents. 56That undertaking reads: If claims (including claims already lodged) for increases in remuneration are made by any of the respondents, to apply on and from the first pay period on or after 1 July 2014, for those groups of public sector employees covered by those industrial instruments subject to the ongoing, 2013 matter, (IRC No 257 of 2013 and Ors) the Secretary will consent to those increases being applied from the first pay period on or after 1 July 2014, such operative date unconstrained by clause 6(1)(e) of the Industrial Relations (Public Sector conditions of Employment) Regulation 2011. 57In our view, the undertaking provided on 29 April 2014 satisfactorily addresses the first two concerns raised by the respondents. 58As to the third point, we do not see that, in the context of proceedings dealing with an application to vary an application for leave to appeal and appeal, it would be appropriate for a party to provide an undertaking concerning the conduct of entities not party to the instant proceedings, or for the Commission to require such undertakings. Having said that, in the context of the overall good management of the present round of award variation applications at large, we encourage those employers outside the scope of this appeal to consider favourably the provision of a similar undertaking. 59Whilst the prospect of some delay remains, on balance we consider the undertaking provided on 29 April by the appellants meets the requirements of a just disposition of this matter by significantly removing the threat of the kind of prejudice arising from the effect of the regulation to which the respondents have adverted. 60For this reason we shall allow the appellants to amend the appeal with respect to the evidence point. It does not follow, however, that any remitter of the matter, were the point to be successful on appeal, would necessarily allow the economic evidentiary case to be simply run again.

Further process in the matter 61Accordingly, we will make orders to lift the stay, grant leave to amend and reimpose the stay on the basis that the undertaking provided by the appellants to the Commission and accepted by the Commission is a term of the stay sought by the appellants being granted. 62Further, the parties will note that the stay is granted, as it was when first conferred, on the basis that the appeal proceedings are stayed until the determination of the related proceedings presently before the New South Wales Court of Appeal. The parties should expect that, consistent with what we have said regarding the Commission's obligation to act without delay, if the challenge brought in the New South Wales Court of Appeal is unsuccessful, the appeal will be programmed for hearing and determination at the Commission's earliest availability. The parties should hold themselves ready to accommodate that course.

Orders 63The Full Bench makes the following orders: On the basis of the undertaking provided by the appellants to the Commission on 29 April 2014: (1) The stay presently in force is lifted pro tem so as to permit amendment of the appeal as set out in these orders; (2) Leave to amend the application for leave to appeal and appeal is granted in terms of par A. 2. of the Notice of Motion filed by the appellants on 11 March 2014; (3) The appeal is again stayed on terms that the undertaking provided by the appellants to the Commission is accepted as an undertaking to the Commission; (4) The appeal is stayed until the date of the determination of the proceedings initiated by the appellants in the New South Wales Court of Appeal.

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: 01 May 2014