State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales

APPLICANT Mr A R Moses of counsel Solicitor: Mr S B Price Corrs Chambers Westgarth LEGAL REPRESENTATIVES: RESPONDENT Mr B G Docking of counsel Solicitor: Mr G Henderson Pricewaterhousecoopers Legal

JUDGMENT:

• 22 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: WALTON J, Vice- President HUNGERFORD J BOLAND J

STATE OF NEW SOUTH WALES (DEPARTMENT OF PUBLIC WORKS AND SERVICES AND DEPARTMENT OF EDUCATION AND TRAINING) v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR PAGE)

Application by the State of New South Wales (Department of Public Works and Services and Department of Education and Training) for leave to appeal and to appeal against decisions and orders of a Local Court constituted by a Magistrate given on 5 June and 6 June 2000 in Matters Nos CIM 284 and CIM 285 of 1999. JUDGMENT OF THE COURT

1 On 6 June 2000 the State of New South Wales (Department of Public Works and Services and Department of Education and Training) filed a notice of motion for a stay of proceedings and an application for leave to appeal and appeal pursuant to s 47(4) of the Occupational Health and Safety Act 1983 and ss 188, 190 and 197 of the Industrial Relations Act 1996 from decisions and orders of a Local Court constituted by a Magistrate, Ms P O'Shane, in Matters Nos CIM 284 of 1999 and CIM 285 of 1999 said to have been given on 5 and 6 June 2000. 2 The matters before her Worship concerned prosecutions by Inspector Page, of the WorkCover Authority of New South Wales, against the State of New South Wales in its emanations as the Department of Public Works and Services and as the Department of Education and Training, alleging breaches of s 16 of the Occupational Health and Safety Act. 3 The orders sought by the applicant in its notice of motion were as follows: 1. That this Motion be returnable instanter.

That the proceedings before Magistrate O'Shane in matter number CIM 284 and 285 of 1999 be stayed pending the final determination of the appeal.

Costs or such other orders as this Commission deems necessary. 4 Part E of the application for leave to appeal and appeal set out the matters appealed against, as follows : 1. Her Worship's decision that the State of New South Wales may be prosecuted in its emanation as a government department.

2. Her Worship's order that the proceedings before her continue on the basis that the State be prosecuted in its emanation as separate government departments pursuant to two summons ( sic ) each alleging breach of section 16 of the OH&S Act.

3. Her Worship failed to consider the submission by the defendant that it was entitled to rely upon privilege against self-incrimination in resisting production of documents. (Note that this ground was inserted by way of amendment by the applicant in the course of proceedings).

Her Worship's determination and orders that the Respondent's subpoenas for production to the State not be struck out as an abuse of process. 5 The relief claimed by the applicant in Part I of its application for leave to appeal and appeal was: 1. That the whole of the decision and orders made by her Worship on 5 June 2000 and 6 June 2000 be stayed pending the determination of the appeal.

3. That the appeal should be allowed and that the whole of the decision and orders of her Worship of 5 June 2000 and 6 June 2000 be set aside.

4. That the summons and information in proceedings 284 of 1999 and 285 of 1999 be dismissed.

In the alternate to order 4 above that the Commission in Court Session on Appeal, if it deems necessary, remit the matter back to another Industrial Magistrate to determine according to law.

That the Respondent pay the costs of the Appellant of the proceedings before the Industrial Magistrate and of the Appeal.

Such further or other orders as may seem appropriate upon the grounds stated above. 6 Part J of the application for leave to appeal and appeal set out the reasons for seeking a stay of the proceedings before her Worship in this way : 1. The decisions and orders of her Worship are manifestly in error.

2. There would be no prejudice to the Respondent if a stay is granted.

3. The Appellant will be exposed to prejudice should the proceedings before Magistrate O'Shane continue in circumstances where there are manifest errors of law in her orders which has resulted in the proceedings be ( sic ) voidable. 7 The notice of motion was listed for hearing at 2.30 pm on 6 June. 8 Mr A R Moses of counsel appeared for the applicant. His submissions in support of the motion for a stay may be summarised as follows: (1) It was argued by the defendant in the proceedings before the Magistrate that the State of New South Wales was only one entity and it could not be prosecuted for what was one issue by the method that the prosecution wished to deploy in this matter. That is, to issue two informations and summonses against the State of New South Wales attacking two different government departments in relation to an incident that occurred on the site of Berkeley Vale High School in the State of New South Wales. The prosecution should have made an election as to who it was that was being prosecuted in respect of the State of New South Wales. (2) Her Worship held that the WorkCover Authority is an emanation of the State of New South Wales and therefore it can prosecute the State of New South Wales in whatever emanation it is, whether that be one government department or two government departments. The applicant takes issue with that and says that in the circumstances the State can be prosecuted only once. (3) There is no authority that is directly in point in relation to this issue in this Court and there is no other authority of a court in New South Wales. (4) The applicant does not take any issue with the fact that the relevant informations and summonses refer to the State of New South Wales rather than the Crown in right of the State of New South Wales. If the defendant is not properly named, the applicant accepts that is a misnomer and not a misjoinder so as to be capable of cure under s 65 of the Justices Act 1902. (5) Two subpoenae for production were issued against the State, one against the Department of Public Works and Services and one against the Department of Education and Training. A motion was filed by the State in the proceedings before her Worship seeking to set aside the subpoenae on a number of grounds. During the course of proceedings senior counsel for the State, in resisting production of documents, raised the argument of privilege against self-incrimination. Her Worship declined to deal with this argument because it was not a matter dealt with in the notice of motion. The applicant contends that the failure by her Worship to consider the submission relating to privilege was a fundamental denial of natural justice and procedural fairness and it was a submission which ought to have been dealt with. (6) The proceedings before her Worship should be stayed pending the outcome of the applicant's application for leave to appeal and appeal, which appellate review raises important questions of law. There will be a fundamental miscarriage of justice if the proceedings before her Worship are allowed to continue in their current form. The State is seriously prejudiced by the failure of her Worship to consider the argument relating to privilege. Those are matters which should be examined by the Court before the proceedings are allowed to continue before her Worship. (7) The jurisdiction of the Court to deal with the motion presently before it is based on the following combination of statutory provisions : (i) Section 197(2) of the Industrial Relations Act , which provides :

(2) The provisions of the Justices Act 1902 that relate to appeals to the District Court and the Supreme Court, the decisions of those Courts on those matters and the carrying out of any such decision apply, subject to the regulations under this Act, to appeals to a Full Bench of the Commission in Court Session. (ii) Section 104(1) of the Justices Act , which provides :

(1) Appeals by defendants A person against whom any conviction or order was made, or sentence was imposed, by a Magistrate in summary proceedings may appeal under this Division to the Supreme Court on any of the following grounds: (a) a ground that involves a question of law alone, (b) a ground that involves a question of mixed law and fact, but only with the leave of the Supreme Court, (c) the ground that the conviction, order or sentence cannot be supported having regard to the evidence.

This subsection does not apply in respect of an order that is made in relation to committal proceedings or an interlocutory order. (iii) Section 47(4) of the Occupational Health and Safety Act , which provides: (4) The provisions of section 197 of the Industrial Relations Act 1996, and of the regulations under that Act, relating to appeals from a Local Court to the Industrial Relations Commission in Court Session apply to proceedings before a Local Court for offences against this Act or the regulations. (8) The decision by the Magistrate that the State of New South Wales may be prosecuted in its emanations as two government departments, thereby disposing of the application that the proceedings be struck out, and her decision not to deal with the argument concerning privilege against self-incrimination, have the effect of being an order or orders made by a Magistrate in summary proceedings and that order or orders may be appealed against by virtue of the combination of the statutory provisions set out above. (9) The decision in Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246 makes it clear that s.104 of the Justices Act , as amended by the Justices Legislation Amendment (Appeals) Act 1998, applied to the appeal proceedings in that matter. Section 197 is not exhaustive of the rights to appeal which a party has in respect of a decision or order of a Local Court sitting in its capacity either under the Industrial Relations Act or under the Occupational Health and Safety Act . (10) The appeal involves a question of law. (11) The Industrial Relations Act should be read in a manner beneficial to the rights of the applicant. (12) An arguable case has been made out that an appeal lies and that is all which is required in these interlocutory proceedings. (13) The Court is a superior court of record. It has an inherent jurisdiction to ensure there is not a miscarriage of justice or an abuse of process and it would be nonsense for it to be suggested a Full Bench of the Court does not have the power to intervene in an interlocutory decision in which a miscarriage of justice is occurring before a Magistrate sitting as a Local Court yet it has the power to intervene in the case of a single judge of the Court. (14) No prejudice would be caused to the prosecutor if the stay were to be granted. 9 Mr B G Docking of counsel appeared for the prosecutor as the respondent to the motion. His submissions may be summarised as follows :

(2) The judgments on appeal by Full Benches of the Court in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 and Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 are authority for the proposition that the substantive right of appeal from a Local Court to a Full Bench of this Court is in s 197(1) of the Industrial Relations Act and that s 197(2) does not pick up new and substantive rights of appeal from the Justices Act . Section 197(1) does not enable an appeal to be brought in respect of any aspect of the proceedings before the Magistrate here.

(3) Tully v Inspector Campbell (unreported, Peterson J, CT94/1113, 17 February 1995) and Byron Shire Council v WorkCover Authority of New South Wales (unreported, Fisher P, CT95/1363, 6 August 1997) are authority for the proposition that s 197(2) as it is now enacted is merely a machinery or procedural provision and not one conferring substantive rights.

(4) No appellable order or orders have been made by the Magistrate in the proceedings.

(5) The prosecutor has not sought access to the documents in respect of which privilege is claimed. Until access is sought it is premature to claim privilege.

(6) The matters sought to be appealed against as set out under E in the application for leave to appeal and appeal are not reasonably arguable. Her Worship in effect accepted the prosecutor's argument that it was relying upon different acts and omissions in respect of different undertakings conducted by two government departments; her Worship was therefore satisfied it was not appropriate to ask the prosecutor to elect which information it intended to pursue.

(7) Whilst there are two pleas of not guilty on foot in the proceedings before her Worship, it is not open to the State to take a double jeopardy point. It is premature. Such a point could only be taken if the proceedings reach the stage where there is a conviction or acquittal on one of the informations. That is the time to consider whether there is any valid issue of double jeopardy.

(8) Privilege against self-incrimination is a human right and is not available to an artificial entity such as the applicant here. 10 In reply, Mr Moses stated :

(1) The prosecutor has put nothing that contributes to an understanding of the way in which s 197(2) is to operate in circumstances such as the present appeal. The cases he referred to are not relevant to the issue at hand.

(2) Nothing has been put by the prosecutor as authority for the manner in which the State is being prosecuted before the Local Court.

(3) There is no authority that says the State cannot claim the right of privilege against self-incrimination. The State of New South Wales is not a corporation or an artificial entity. 11 Following a brief adjournment, we determined to dismiss the notice of motion for a stay of proceedings and indicated reasons for so doing would be delivered in due course. 12 We now give our reasons. 13 The particular matter before the Court, indeed the only matter at this stage, is the notice of motion filed on behalf of the applicant State of New South Wales for an order that the prosecution proceedings against it before Ms O'Shane, sitting as a Magistrate in a Local Court, be stayed pending the final determination of its application for leave to appeal and to appeal against two interlocutory decisions made by her Worship in the course of hearing the prosecutions. The respondent (the prosecutor below) in resisting the motion relied upon the fundamental proposition, for the reasons earlier outlined as put by Mr Docking, that the purported appeal was incompetent and, so, no stay should or could be granted. On the other hand, the applicant contended, for the reasons stated by Mr Moses and also outlined earlier, that all it need do to obtain a stay was to establish an arguable right of appeal; counsel emphasised that important issues of law were raised by her Worship's decisions and it was appropriate to stay the proceedings to enable authoritative rulings thereon so as to avoid a miscarriage of justice or an abuse of process before the Local Court. 14 Nevertheless, and as Mr Moses very properly conceded in response to a question from the Bench, the "notice of motion really only has life to the extent that there is a valid appeal". Necessarily, therefore, and particularly having in mind Mr Docking's arguments, we will have to attend, at least in a preliminary way in determining the motion, to the status of the appeal sought to be brought. 15 The facility of a stay of a challenged decision, in whole or in part, is afforded by s 190 of the Industrial Relations Act. The principles on which a stay is allowed have been often stated - in short, a sufficient reason needs to be shown to delay the decision made at first instance from being effective pending the determination of the appeal: see Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685 and Water Industry Salaried Officers' Union v Professional Officers' Association of New South Wales [1987] 22 IR 178. As was observed by the Full Commission (Fisher P, Hungerford J and Buckley CC) of the former Commission in Professional Officers' Association of New South Wales v New South Wales Teachers' Federation [1993] 50 IR 404 at 404 : Shortly stated the approach in considering a stay application is that the appellant is required to demonstrate reasons to warrant the exercise of discretion in his favour. Specifically unlike the former position, an appellant is not now required to establish special or exceptional circumstances to warrant the imposition of a stay. The question then is whether the appellant has established or demonstrated reasons supporting an appropriate case for a stay.

In the result in that case, the Full Commission considered the circumstances in terms of the balance of convenience as favouring a stay and said (at p 405) that "if a stay were not granted however then a series of applications drastically affecting the rights of industrial parties to represent the interests of their members or potential members would produce major consequences and may indeed have subsequently to be unravelled". 16 The difficulty which the present application faces is that the order sought is to stay the whole proceedings before her Worship pending the determination of the appeal; in turn, the relief sought in the appeal is for the decisions made by her Worship in relation to the two issues concerned to be set aside and for the two summonses initiating the prosecutions to be dismissed or, in the alternative, to be remitted to another magistrate "to determine according to law". In that sense, the appeal, and hence the motion seeking to stay the prosecutions, is very much in the nature of either a stated case (but which procedure was abolished by cl 2.11 in Sch 2 to the Justices Legislation Amendment (Appeals) Act 1998 which commenced on 1 March 1999) or a prerogative order (but which is not within the statutory remedies available). The surviving and sole means, then, to challenge in this Court a decision made in a Local Court is now exclusively by way of appeal. Here, of course, the challenge arises out of interlocutory decisions in relation to continuing proceedings and the outcome otherwise of those proceedings, as to which an appeal ultimately may be brought, will simply not be known until they are completed. 17 The submissions by Mr Moses that as a superior court of record this Court has an inherent jurisdiction to ensure against a miscarriage of justice or an abuse of process by entertaining the type of relief claimed here are to be seen in light of the difficulty as we have identified it and in the context of the sole remedy available being that of an appeal. It is true that under s 190 a challenged decision may be stayed pending an appeal, but that does not enable, in our view and against what Mr Moses suggested, the making of an order staying "proceedings" as distinct from a challenged "decision". Our conclusion on this aspect is sufficient to justify the dismissal of the motion. 18 It is to be emphasised that the relief sought by the motion was directed against the Local Court by requiring her Worship as constituting it to effectively cease hearing the prosecutions so as to enable the applicant to obtain rulings favourable to it on the two issues decided against it in the course of the proceedings. However wide our powers may be as a superior court and as the appellate body in relation to offences under the Occupational Health and Safety Act, we do not think our inherent (or, perhaps more correctly, our incidental) powers extend, in the absence of an express statutory provision, to prohibit, even temporarily, proceedings before a Local Court or to require that interlocutory rulings during such proceedings be decided in a particular way. 19 Whilst it may not strictly be necessary to finally consider the nature and extent of our powers on appeal in determining the present motion as such matters will arise when the appeal is heard, it is nevertheless necessary, it seems to us, to at least consider whether a competent appeal is likely to exist in terms of our assessment of the balance of convenience as warranting a stay of the proceedings pending the final determination in the appeal hearing of whether there is indeed a competent appeal. After all, much of the debate before us on the motion was directed to the competency of the appeal and the notice of appeal itself sought an order that the whole of the decisions and orders made by her Worship be stayed pending its determination. It is therefore inevitable in considering a stay of the proceedings to attend to the issue whether the appeal is competent. 20 We interpose the observation that it may have been open to the applicant to seek from this Court declaratory orders under s 154 of the Industrial Relations Act as against the respondent in relation to the right of the applicant to be free from prosecution in its emanation as separate government departments and as to its privilege from self-incrimination in resisting the production of documents. Whether such relief indeed be available in respect of a matter proceeding in a Local Court does not arise for determination here because it was not sought and, so, it need not be pursued. We mention it, however, because the Industrial Relations Act affords what is a most useful facility in the declaratory jurisdiction in the resolution of legal issues between parties and we would not wish to be seen as ignoring such mechanism for an appropriate case in the future. 21 Proceedings for an offence against the Occupational Health and Safety Act may, at the option of the prosecutor, be taken in a Local Court constituted by a Magistrate or before this Court: see s 47(1) of the Occupational Health and Safety Act. If taken before a Local Court, s 47(4) applies the provisions of s 197 of the Industrial Relations Act relating to appeals from a Local Court to this Court; s 197 states : 197 Appeals from Local Court

(1) An appeal lies to a Full Bench of the Commission in Court Session against:

(a) any order made under this Act by a Local Court for the payment of money or the dismissal by the Local Court of an application for such an order, or

(b) any conviction or penalty imposed by the Local Court for an offence against this Act or the regulations, or

(c) a civil penalty imposed under this Act by a Local Court for a contravention of an industrial instrument.

(2) The provisions of the Justices Act 1902 that relate to appeals to the District Court and the Supreme Court, the decisions of those Courts on those matters and the carrying out of any such decision apply, subject to the regulations under this Act, to appeals to a Full Bench of the Commission in Court Session.

(4) The Full Bench of the Commission in Court Session may refer a matter the subject of an appeal back to the Local Court with such directions or recommendations as it considers appropriate.

(a) applies to a decision or purported decision of a Local Court in proceedings to which this section applies in the same way as it applies to a decision or purported decision of the Commission, and

(b) without limiting that section, applies to a decision or purported decision of the Commission in respect of proceedings to which this section applies. 22 We mention for completeness, but without developing, that where proceedings for an offence against the Occupational Health and Safety Act are taken before a judge of this Court sitting alone then s 196 of the Industrial Relations Act applies the Criminal Appeal Act 1912 to any appeal to a Full Bench of the Court and otherwise the appeal provisions of the Industrial Relations Act do not apply. However, the exception is that s 197A applies to a decision by a Local Court or of a judge of this Court to acquit a person of any offence against occupational health and safety legislation so as to give a right of appeal to a Full Bench. 23 The present question which arises is whether the applicant has a right of appeal against the two decisions of her Worship given on 5 and 6 June 2000 as to its exposure to prosecution for the two offences and to its inability to rely upon the privilege against self-incrimination in resisting the production of documents in answer to the subpoenae served on it. For his part, Mr Moses characterised the said decisions as having the effect, certainly arguably so, of appellable orders made by her Worship in summary proceedings by reason of the combined operation of s 47(4) of the Occupational Health and Safety Act, s 197(2) of the Industrial Relations Act as applying the appeal provisions of the Justices Act and s 104(1)(a) of the Justices Act as giving an appeal right because questions of law alone were involved. We would point out that any such appeal, if otherwise able to be brought in this Court, being against an interlocutory order would require pursuant to s 104(4) leave to do so. On the other hand, Mr Docking submitted against the competency of the appeal on the basis that s 104 had no application because s 197(2) was merely procedural in nature and created no substantive right of appeal; thus, the only appeal rights were under s 197(1) which, contrary to the challenged interlocutory decisions here, relevantly limited any appeal under para (b) thereof to "any conviction or penalty imposed by the Local Court for an offence" - that stage had not yet been reached and, so counsel said, no appeal lay. 24 It will be apparent that an essential link in the appeal chain traced by Mr Moses was counsel's reliance on s 197(2) of the Industrial Relations Act to give a right of appeal under s 104(1) of the Justices Act against the orders made, subject to leave under sub-s (4) thereof. For that "link" to be made good would require a substantive right of appeal to be granted by s 197(2), for it to be not merely procedural in nature as Mr Docking suggested it was, and for the challenged decisions to truly be "interlocutory orders" within the meaning of s 104. 25 We are prepared to accept, but without finally deciding because we have serious doubts that her Worship made "orders" rather than mere "rulings" on the two disputed questions, that the decisions made as to the status of the respondent for the purposes of prosecution for two offences and the production of documents each was an "order" interlocutory in nature. The term "order", in its widest sense, may properly include any decision by a court on an issue between parties to proceedings before it and, where the decision does not determine the main or ultimate issue concerned, the decision on the issue is interlocutory. As was stated in Halsbury's Laws of England (4th ed, vol 26, para 506) - "An order which does not deal with the final rights of the parties, but …is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, … is termed 'interlocutory'. An interlocutory order, even though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals". 26 Here, although the material before us is not entirely clear, it seems the decisions were made by her Worship against the applicant by dismissing a notice of motion filed by it for orders dismissing the charges unless the respondent elected the single charge on which to proceed and to set aside the subpoenae for production of documents. The concerns we have that her Worship did not make orders but only rulings are: firstly, the complete facts (as to which counsel before us were in sharp disagreement) finally found by her Worship after a full hearing may well result in an ultimate finding that only one issue was involved as supporting one offence; and, secondly, although the subpoenae had to be obeyed, the documents had not been called for nor had access been sought by the respondent. Whether such documents, of course, are eventually admitted into evidence over any objection by the applicant is simply not known at this premature stage of the proceedings. Those concerns so identified, and whether they do or do not mean that the decisions made were truly orders, nevertheless are against the balance of convenience in allowing the present motion on the basis of prematurity - the proceedings should not, in our view as a matter of discretion, be stayed in the absence of full findings of fact as to the disputed issues. 27 In any event, we are of the prima facie view that s 197(2) of the Industrial Relations Act is merely procedural in nature and does not provide any substantive right of appeal pursuant to the provisions of the Justices Act against a decision, whether an interlocutory order or otherwise, made by a Magistrate in a Local Court in proceedings for an offence under the Occupational Health and Safety Act. Any such appeal right, we think, would clearly seem to arise only from s 197(1) of the Industrial Relations Act as made applicable by s 47(4) of the Occupational Health and Safety Act. 28 Support for the view so expressed, as a matter of pure statutory construction, is that if sub-s (2) of the section gave appeal rights as well as those rights granted by sub-s (1)(b) then s 197 would contain two regimes for appeals from a Local Court under occupational health and safety legislation; in a very real sense, if sub-s (2) gave appeal rights then the provisions of sub-s (1)(b) would be otiose. We find that difficult to accept as the true intention of the legislature. Indeed, if sub-s (2) provided a substantive right of appeal under the Justices Act, but which we are inclined to think does not, then one would be faced with potentially conflicting, but certainly different, appeal rights under the Justices Act which in Pt 5 thereof deals with provisions relating to appeals to the Supreme Court and in Pt 5A thereof deals with appeals to the District Court - a review of those two sets of provisions does not show an identical correspondence in appeal rights. That may relevantly be illustrated by s 121(1) which provides that an appeal to the District Court may not be made against any interlocutory order made by a Magistrate whereas s 104(4) provides that an appeal may be made to the Supreme Court against any interlocutory order made by a Magistrate in summary proceedings on a ground that involves a question of law alone but only with the leave of the Supreme Court. 29 That a provision such as s 197(2) is procedural in nature and as not providing a substantive right of appeal has been the subject of long-settled authority in respect of its statutory predecessors under the former and since repealed s 55 of the Industrial Arbitration Act 1912, s 120 of the Industrial Arbitration Act 1940 and s 741 of the Industrial Relations Act 1991. So far as we are aware, the first consideration given to this issue was by Piddington P in Wilcox, Mofflin, Ltd v Pollard [1927] AR (NSW) 425 in relation to the Industrial Arbitration Act 1912 which contained in sub-ss (1) and (3) of s 55 provisions relevantly indistinguishable from those respectively in sub-ss (1) and (2) of s 197 of the present Industrial Relations Act. His Honour concluded (at p 432), after a detailed review of the operation of the statutory provisions in light of traditional rights of appeal, as follows : I think the substantive right has its range fixed by sub-section (1) of section 55, and that it is not open to the Commission to affect that range by curtailment or extension. If subsection (3) provides alterable machinery only, then the regulating power is properly made paramount because it is the function of that power to set up machinery to facilitate what the Legislature has substantively decreed.

In so finding, Piddington P relied on the view stated by Knox CJ, Isaacs, Gavan Duffy and Starke JJ in Minister for Labour and Industry (NSW) v Mutual Life and Citizens' Assurance Co Ltd (1922) 30 CLR 488 where their Honours said as to s 55 (at p 495) : Sub-sec 3 adopts, by way of machinery for the appeal and the case stated, the provisions mutatis mutandis of the Justices Act 1902, but only with reference to the appeal and case stated to the Industrial Court. 30 In Berry v Munson [1939] AR (NSW) 142 a Full Bench (Cantor, Ferguson and De Baun JJ) of the Industrial Commission again considered the nature of the appeal rights given by s 55 of the Industrial Arbitration Act 1912 and, after citing with approval the decision in Wilcox, Mofflin, Ltd v Pollard, held (at p 146) that the appeal was under sub-s (1) and sub-s (3) was merely a machinery clause. 31 The reasoning in those earlier cases that a provision such as s 197(2) was procedural and not substantive in nature so as not to give a separate or additional right of appeal to that allowed by s 197(1) has been followed in later cases under the comparable provisions of the successive industrial statutes: see Tully v Inspector Campbell (unreported, Peterson J, CT94/1113, 17 February 1995 at pp 11-13), Byron Shire Council v WorkCover Authority of New South Wales (unreported, Fisher P, CT95/1363, 6 August 1997 at p 7) and, generally as to the nature of the appeal under s 197, see Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 444-449, Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 465 and Blue Mountains Disability Services Ltd v Stinson (1999) 92 IR 246 at 250. 32 In the result, the essential link in the appeal chain relied upon by Mr Moses to support the appeal under s 197(2) of the Industrial Relations Act in conjunction with s 104(1) of the Justices Act has not been positively established to our satisfaction and, indeed, we are not persuaded the applicant has a reasonably arguable case that the appeal is competent. To succeed, it would have to convince the Court on the hearing of the appeal not to follow the long-standing authorities as earlier cited. Also, for present purposes, we are not satisfied on the balance of convenience that such potential arguments should delay the prosecution proceedings before her Worship. Of course, should the applicant be convicted of the offences charged then s 197(1)(b) would provide a right of appeal against such convictions on grounds challenging the two disputed decisions here, provided such decisions have operative effect on the ultimate convictions entered. 33 It was for the foregoing reasons that on 6 June 2000 we dismissed the notice of motion. As to the costs of the motion, we note they are to be dealt with as part of the appeal proceedings which, in due course, will be listed for hearing by arrangement with the parties. _________________

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