Sparke v Hay

Court of Appeal (NSW)|2014-09-02|Before: Macfarlan JA, Leeming JA, Staff J, Boland J, MacFarlan JA

Judgment 1MACFARLAN JA: I agree with Leeming JA. 2LEEMING JA: Transitional provisions, enacted following changes to the Industrial Relations Commission (Commission), deemed certain undetermined appeals to have been commenced in this Court. Two such proceedings were listed before the Court, for determination whether they engaged the transitional provisions, whether in fact there was a right of appeal, and whether leave to appeal should be granted. I have concluded that the transitional provisions deem each proceeding to be before this Court, and that they should be dismissed, because even if there is a right of appeal, it is subject to leave, and leave should be refused.

Do the deeming provisions apply to the first and second pending proceedings? 20Contrary to Mr Sparke's submission, the second pending proceeding is plainly one which was neither heard nor partly heard by a Full Bench of the Commission in Court Session within the meaning of cl 58(2). The only things that happened prior to the abolition day were two directions hearings before a single judge of the Industrial Court, and the filing of submissions on jurisdiction. 21It follows that the second pending proceeding is deemed, by dint of cl 58(4)(a), to have been commenced in the Supreme Court and may be heard and determined accordingly. 22The position is much less clear in the case of the first pending proceeding. That application for leave to appeal was listed for hearing before a Full Bench on 27 September 2013. When the matter was called, the Bench was constituted by Haylen and Backman JJ. The presiding judge commenced: "I'm sorry for the delay but we seem to have mislaid a member. But we thought that we, having regard to the issue that was raised with the parties, we thought it would be appropriate today to deal with the jurisdictional issue." 23The respondents had served written submissions on jurisdiction on Mr Sparke that afternoon. After being advised of that, the presiding judge said: "Haylen J: We have had our deal of troubles today and I am keen to make sure that we resolve these issues about the appeal. What I propose to do is hear anything further the first respondent wants to say about the competency issue, question of jurisdiction and then I will have a discussion with Mr Sparke about how he might respond to the written document and any oral submissions." 24The respondents addressed in support of the proposition that there was no further right of appeal by reason of s 55(4). The presiding judge then returned to Mr Sparke: "Haylen J: Mr Sparke, I don't know if you have been able to follow the argument, but in very broad terms the issue that has been raised for debate is whether Justice Boland's decision must be the last decision, and there are no rights of appeal beyond that, and that is what we would normally call a question of statutory construction. It looks at s 55 of the Apprenticeship and Traineeship Act and, in particular, subs 4. Now I understand you are not aware that this debate was to take place today. Would you like the opportunity to put in written submissions about that issue?" 25Mr Sparke accepted that offer and directions for the filing of further submissions were made. The presiding judge made it clear that there would not be further oral argument: "Haylen J: We will adopt this timetable. The first respondent is to file further submissions by 4 October. Mr Sparke, you are to file your submissions by 11 October. My plan is that the Court would then deal with the issue in those written submissions. I would not be anticipating a further oral argument here. Are we all clear about that?" 26That confirmed what the presiding judge had said, candidly, to the parties about the need to determine the issue rapidly: "Haylen J: Mr Sparke, to put it in plain language, I will not be here beyond the end of October." 27Every Australian court has jurisdiction to determine whether it has the jurisdiction which a claimant has purportedly invoked: Khatri v Price [1999] FCA 1289; 95 FCR 287 at [15]; Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1999] FCA 1572; 94 FCR 384 at [18]. Moreover, the first duty of a court is to determine whether it has jurisdiction: see Zhang v Zemin [2010] NSWCA 255; 79 NSWLR 513 at [39]-[46]; Eberstaller v Poulos [2014] NSWCA 211 at [1] and [14]. 28Accordingly, the Commission had both authority, and an obligation, to decide whether the purported invocation of appellate jurisdiction by Mr Sparke and Beoox was valid. Plainly, it was to that issue that the hearing conducted on 27 September 2013, and the submissions supplied subsequently, were directed. Contrary to what was said in Sparke v State Training Service [2014] NSWIRComm 3 at [13], this was not "the mere giving of directions"; what occurred on 27 September 2013 was the hearing of an essential aspect of the exercise of the Commission's jurisdiction. Indeed, save for one matter, it would be clear that the first pending proceeding was one which was "heard, or partly heard, by a Full Bench of the Commission in Court Session" within the meaning of cl 58(2), with the result that the deeming in cl 58(4) would not apply. 29The qualification, which is also the explanation (it may be inferred) for the fact that the question which had been fully argued has not been resolved, is that s 156 of the IR Act provided: "Subject to section 155(2), a Full Bench of the Commission consists of at least three members who are constituted as a Full Bench by the President for the purposes of a proceeding." 30There was no question of s 155(2) (which dealt with the cancellation of the registration of industrial organisations) applying. The respondent contended that because the Bench which sat on 27 September was comprised of two judicial members only, the proceedings were a "nullity". It is not necessary to consider what that submission precisely amounts to, and whether it is correct, because it goes further than what is required to resolve the threshold question of this Court's jurisdiction. All that matters is whether the proceeding answers the description of one which was "heard, or partly heard, by a Full Bench of the Commission in Court Session before the abolition day" within the meaning of cl 58(2). That issue, in turn, comprises two sub-issues. The first is the juristic nature of what occurred on 27 September 2013, and the submissions subsequently filed. The second is as to the construction of cl 58(2). It is convenient to determine this issue by reference to the second. 31Clause 58(2) is a transitional provision. Its purpose is to avoid the need for a rehearing. In the present case, there has not been any "hearing by a Full Bench of the Commission in Court Session" which was properly constituted. True it is that there was a hearing before such a body purportedly constituted, but it is not disputed that that hearing did not comply with the law. There is no reason for cl 58(2) to apply to such a hearing. The hearing which occurred does not answer the natural meaning of the clause. Nor would its purpose be served, by giving it an extended meaning which included the purported hearing which occurred on 27 September 2013. That is because it is now clear that a further hearing will be required by a properly constituted body to determine the preliminary question of jurisdiction. 32It follows that the first pending proceeding is a proceeding which is taken, by cl 58(4)(a), to have been commenced in this Court.

Is there a right of appeal (subject to leave)? 33It was common ground that leave was required if an appeal lay from the decisions of Boland J and Staff J: IR Act, s 188(1). The same is true of the newly created appellate jurisdiction in this Court: IR Act, s 403B. 34Section 55 of the AT Act, which confers the right of appeal (exercised by Mr Sparke) from a decision of the Appeal Panel, provides in subs (4): "The decision of the Commission is final and is to be given effect to as if it were the decision of the person or body in respect of whose decision, determination, action or failure to act the appeal has been made." 35Section 80 of that Act provides that in the event of any inconsistency between it and the IR Act, the former prevails to the extent of the inconsistency. The question is whether s 55(4) (impliedly) denies a right of appeal by leave conferred by the IR Act. That question may not be straightforward. On the one hand, s 55(4) is a specific provision in a statute given priority over the general appellate provisions in the IR Act. On the other hand, it does not clearly abrogate further appeals, and generally it may be accepted that where a statute confers jurisdiction upon an existing body, it takes the body as it finds it including such appeals as already exist. 36It is not necessary, for the reasons given below, to address this question, and, not least because there no submissions were received in opposition to those of the respondent on that issue, it is inappropriate to do so. Even if there were no right of appeal, there was still the purported invocation of an appellate jurisdiction by the filing of Mr Sparke's originating processes, and that is sufficient for there to be a pending proceeding. Putting the same point in other words, either the proceedings purportedly commenced by Mr Sparke were incompetent and liable to be dismissed as such, or else they were, subject to the grant of leave, sufficient to invoke an appellate jurisdiction. But either way, there was an invocation of the Commission's jurisdiction, and that body had jurisdiction to determine whether that purported invocation of jurisdiction was valid.

Should there be a grant of leave to appeal? 37For the reasons already given, irrespective of whether or not an appeal lies with leave, there were still two pending proceedings which are deemed by cl 58(4)(a) to have been commenced in this Court. It is clear that each proceeding may be heard and determined accordingly. 38Either leave is required, or else there is no right of appeal at all. Assuming there is a right of appeal, there is no basis whatsoever for the grant of leave in either proceeding. Section 403B(2) obliges this Court to grant leave if the matter is of such public importance that, in the public interest, leave should be granted. There is no public interest in the determination of whether Beeox adequately supervised its controller's husband who was apprenticed to it. The dispute, although important to Mr and Mrs Sparke, is of no broader public importance. 39In the case of the first proceeding, Mr Sparke has demonstrated no error on the part of Boland J such as to warrant the grant of leave. Although (no differently from other occasions where a court or tribunal had decided against him) Mr Sparke has alleged that it was procedurally unfair and biased, there is no suggestion in the materials available to this Court, which included very lengthy written submissions, of those serious claims being founded in the evidence. He made further serious claims, illustrative of which was ground 8: "The complaint was brought for improper reasons without substantive evidence beyond supposition subsequent to the Apprentice being assaulted by staff of the Respondent parties where the complaint was part of the means to cover up the unlawful actions of the Respondent and subsequently having used a tribunal with a debauched and facilitating Chairperson intentionally acting unlawfully and inappropriately in the adducing of evidence including denying the parties natural justice in forming a determination that has been to all intents and purposes followed and condoned by the Commission a fair and reasonable finding and action of a superior Court." 40Having read the five single-spaced pages of grounds, and 33 pages of written submissions, and heard Mr Sparke in chief and in reply, it is plain that there is no evidence before this Court which comes close to substantiating the serious allegations he has made. 41The position is the same in respect of the second pending proceeding. There is no suggestion of error in principle in Staff J declining to extend time so as to revisit questions presently part-heard before another judicial member of the Commission. Mr Sparke asserted there was jurisdictional error in the judgment of Staff J and once again he made allegations of bias and prejudice. Once again there is no foundation in the materials for the serious allegations made by Mr Sparke. 42It is true that there is a difficulty in identifying the nature of the application made by Mr Sparke. In large measure it purported to be a further challenge to the decision of the Appeal Panel. However, it also included challenges to decisions made by Boland J. It was entirely open for Staff J to take the course that he did, treating it in substance as a challenge to the decision of the Appeal Panel.

Conclusion and orders 43It follows that the position is this. In 2013, Mr Sparke and Beeox purported, twice, to invoke the appellate jurisdiction of the Commission by filing originating process with that body. The transitional provisions deem those proceedings to have been commenced in this Court. Either there is an appellate jurisdiction capable of being invoked, or else there is not. If there is, it is subject to the grant of leave. No basis whatsoever has been demonstrated for the grant of leave. It follows that both proceedings should be dismissed. 44Ordinarily costs would follow the event. However, I am conscious that Mr Sparke never intended to bring proceedings in this Court. He and Beeox are only in this Court because of a deeming provision in transitional provisions enacted after his proceedings had been commenced. The questions raised have not been free from difficulty, and part of that difficulty occurred, through no fault of Mr Sparke, by reason of what occurred on 27 September 2013 when the Full Bench was not properly constituted. Bearing in mind all those matters, I propose that there be no order as to costs. 45TOBIAS AJA: I agree with the orders proposed by Leeming JA for the reasons he has expressed.

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: 11 September 2014

Industrial Relations Amendment (Industrial Court) Act 2013(NSW)

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