Sutton v BE Australia WD Pty Limited ACN 093 054 623

Ms Sutton's submission 6Ms Sutton's submissions may be summarised as follows: (a) there is no basis on the evidence for the order sought at (e) of the notice of motion. This order is akin to a strike out motion: Nagle (t/as W. D. and J. L. Nagle & Sons) v Tilburg [1993] 51 IR 8 at 10-12. In order to succeed Mr Cochran "must demonstrate that no order could be made which would be within jurisdiction": see Beahan v Bush Boake Allen Australia Ltd (1999) 93 IR 1 at 2 or for Mr Cochran to succeed it must be "demonstrated that there is no power for the Court to grant any relief to the applicant" (see Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 448 and Euphoric Pty Ltd v Ryledar Pty Ltd & Anor [2002] 117 IR 1 at 4-5). The Court is required to take the applicant's pleadings at its highest in determining this matter. In this case the Court is also required to take the applicant's evidence at is highest; (b) the Court does have a legislative warrant for service of originating process outside of NSW (see Gough & Gilmour v Caterpillar (No 2) (2001) 106 IR 274 at [88]-[92]; Rasmussen v Eltrax Systems Pty Ltd & ors (No. 4) [2006] NSWIRComm 225; and Verso Technologies Inc (formerly Eltrax Systems Inc) v Rasmussen & Ors [2004] 135 IR 147; (c) the provisions of the Industrial Relations Act override the provisions contained within the Uniform Civil Procedure Rules 2005 (the "UCPR"); (d) the Industrial Relations Commission Rules 2009 (the "IRCR") prevail over those in the UCPR (see r 1.7 and Schedule 2 of the UCPR). Proceedings under s 106 must be served on the respondent unless otherwise ordered by the Registrar (r 13.2(3) of the IRCR). Rule 10.8 of IRCR clearly envisages that originating process maybe served outside the State without any restriction; (e) the basis for the decision in Studorp Ltd v Robinson [2012] NSWCA 382 is not applicable to the present proceedings; (f) a Court may dispense with the requirements of the Rules in any case if appropriate to do so (see s14 of the Civil Procedure Act 2005).

Relevant legislation 7The parties referred to various statutory provisions including rules of court. It is of assistance to set those provisions out so that the later discussion of them may be properly understood. 8Section 162 of the IR Act remains in the same terms as it was in 2001 when considered in Gough & Gilmour (No 2): 162 Procedure generally (1) The Commission may, subject to this Act, determine its own procedure. (2) The Commission: (a) is to act as quickly as is practicable, and (b) is to conduct its proceedings publicly or, if it considers it necessary, privately, and (c) may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (d) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (e) may sit at any place, and (f) may require a document to be served outside the State, and (g) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (h) may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious, and (i) may exercise, on its own initiative, any function exercisable by it on application (except when it is in Court Session), and (j) may, on its own initiative, inquire into any industrial matter. 9Sections 185 and 186 of the IR Act deal with the making of the Commission's rules. The current version of s 185 is relevantly different to the provision that applied in 2001 in that the current version provides that rules of the Commission may be made for, or with respect to, any matter that may be the subject of rules under the Supreme Court Act 1970 or the Civil Procedure Act 2005 (CP Act). Section 10 of the CP Act provides that the rules of court are taken to include the uniform rules to the extent to which they are applicable in that court. 10 Section 185 is presently in the following terms: 185 Rules of Commission (1) Rules of the Commission may be made for or with respect to any matter that by this or any other Act is required or permitted to be prescribed by rules of the Commission or that is necessary or convenient to be prescribed in relation to the practice and procedure of the Commission under this or any other Act. (2) Without affecting the generality of subsection (1), rules of the Commission may be made for or with respect to: (a) the initiation of proceedings in the Commission, or (b) the practice and procedure to be followed in, or for the purposes of, proceedings before the Commission, or (c) the means for, and the practice and procedure to be followed in, the enforcement and execution of decisions of the Commission, or (d) the functions of the Industrial Registrar or other officers under this Act, including functions in relation to proceedings instituted before the Commission, or (d1) authorising any function of the Commission under the Work Health and Safety Act 2011 to be exercised by the Industrial Registrar, or (e) any matter that may be the subject of rules under the Supreme Court Act 1970 or the Civil Procedure Act 2005. (2A) Without limiting subsection (2) (b), rules of the Commission may provide for the giving of evidence (including by way of reports or other documents) in appeals under Part 7 of Chapter 2 by persons having specialised knowledge of matters relevant to promotion appeals or disciplinary appeals under that Part. (3) This section extends to the making of rules relating to the practice and procedure of (and other matters relating to) an Industrial Committee. (4) This section extends to the making of rules relating to the practice and procedure (and other matters) relating to promotion appeals and disciplinary appeals under the Transport Appeal Boards Act 1980. 11Section 186 was and is in the following terms: 186 Establishment and procedure of the Rule Committee of the Commission (1) The rules of the Commission are to be made by a Rule Committee of the Commission comprising: (a) the President of the Commission, and (b) 2 other Presidential Members appointed by the President. (2) The President of the Commission may co-opt other persons to be members of the Committee, either generally or for limited purposes. (3) The procedure at a meeting of the Committee is to be as determined by the President of the Commission. (4) At a meeting of the Rule Committee of the Commission: (a) the President of the Commission is to preside, or (b) if the President is absent, a member nominated by the President is to preside. 12Two new provisions have been inserted into the IR Act since 2001: 185B Commission may dispense with rules in particular cases In relation to particular civil proceedings, the Commission may, by order, dispense with any requirement of rules of the Commission if satisfied that it is appropriate to do so in the circumstances of the case. 185C Commission may give directions in circumstances not covered by rules (1) In relation to particular proceedings, the Commission may give directions with respect to any aspect of practice or procedure not provided for by or under this Act, the Criminal Procedure Act 1986, the Civil Procedure Act 2005 or any other Act. (2) Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done. 13Because s 185C deals with practice and procedure, it could not be regarded as conferring jurisdiction to make directions for the service of originating process outside Australia. 14Reference will be made to a rule, r 112 of the Industrial Relations Commission Rules 1996, which dealt with service outside Australia. That rule no longer exists. From 1 February 2010 the Commission commenced operating under a new Rules regime. The Industrial Relations Commission Rules 1996 were repealed and a new set of rules - the IR Rules - commenced operation. 15Generally speaking, the IR Rules prescribe the procedure for matters that are unique to the jurisdiction. For example, the procedure for dispute notifications was set out in the old rules (Rules 24 - 29) and this procedure is picked up in the new rules (Part 5, Rules 5.1 - 5.5). 16In relation to civil proceedings, the Commission adopted the civil procedure set out under the Civil Procedure Act 2005 and the UCPR, however, local rules (the IR Rules) prevail (see UCPR Rule 1.7). 17Rule 112 was in the following terms: 112. Service out of Australia (1) This Rule applies where, pursuant to section 162(2)(f) or otherwise, any process or document is to be served outside the State and outside Australia. (2) Process or documents may be served outside Australia, but must bear a note in the appropriate form. (3) Where process served under this Rule requires or permits the filing of a notice of appearance, the period for entry of such an appearance will be 21 days after service, unless the tribunal, on application allows a shorter period. (4) Where there is no appearance by the defendant or respondent to any process served under this Rule, the applicant must not proceed except by leave of the tribunal before which the proceedings are brought. 18The IR Rules presently do not make provision for service outside Australia. They do, however, make provision for setting aside originating process. Rule 10.8(1) provides: 10.8 Setting aside originating process (1) The Commission may, on notice of motion filed by a respondent, by order: (a) set aside the originating process, or (b) set aside the service of the originating process on the respondent, or (c) declare that the originating process has not been duly served on the respondent, (d) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State, or (e) discharge any order extending the validity for service of the originating process, or f) protect or release property seized, threatened with seizure, in the proceedings, or (g) declare that the Commission has no jurisdiction over the respondent in respect of the subject-matter of the proceedings, or (h) decline in its discretion to exercise its jurisdiction in the proceedings, or (i) grant such other relief as it thinks appropriate. 19Mr Cochran relies, in the alternative, on r 10.8 to make the orders he seeks in his notice of motion. 20Part 11 of the UCPR makes comprehensive provisions for service of documents outside Australia and service of external process. In 11.1(1) it states the following: 11.1 Application of Part (1) This Part applies to proceedings in the Supreme Court. 21As noted earlier in the summary of Mr Cochran's submission, he contended that because of what r 11.1(1) states and given the decision in Studorp, Pt 11 of the UCPR does not apply to the Industrial Court and because there is no other rule (because r 112 has been repealed) there is no power in the Industrial Court to authorise service of originating process outside Australia.

Consideration 22There can be no issue with Mr Cochran's submissions according to my summary at 5-(e) above. What I do take issue with, however, are the submissions summarised above at 5-(h). 23The issue of whether s 162(2)(f) of the IR Act conferred jurisdiction authorising service of originating process outside Australia so as to enable the institution of proceedings against persons outside Australia was considered and determined in the affirmative in Gough & Gilmour v Caterpillar (No 2) [2001] NSWIRComm 92; (2001) 106 IR 274 at [64]-[92] ("Gough & Gilmour (No 2)"). Counsel for Mr Cochran put nothing different in the present proceedings to what was put by senior counsel for the respondents in Gough & Gilmour (No 2) that would cause me to take a different view now. I adopt the reasoning in Gough & Gilmour (No 2). 24What is different is that in Gough & Gilmour (No 2) the Court was concerned with the question of whether r 112 of the Industrial Relations Commission Rules 1996 was a valid rule. That required the Court to examine the statutory basis for the making of that rule, which, in turn, raised the question of whether s 162(2)(f) of the IR Act authorised the making of r 112. As I have indicated, I concluded in Gough & Gilmour (No 2), s 162(2)(f) authorised the making of r 112. 25The validity of r 112 of the Commission's 1996 Rules had been accepted and consistently relied upon by the Industrial Court, including Full Benches: Bell v Macquarie Bank (No 4) (1999) 93 IR 191; Verso Technologies Inc. (formerly Eltrax Systems Inc) v Rasmussen and Ors [2004] NSWIRComm 90; (2004) 135 IR 147. In Bell, the Full Bench observed at 201-202: [T]his is a statutory court of limited jurisdiction and regard must be paid to the limits of that jurisdiction when considering whether to grant leave to proceed under rule 112. We also consider, for reasons of comity and uniformity, that in determining whether to grant leave to proceed we should have regard to the way in which the Supreme Court has approached similar questions under its rules and the jurisprudence which has developed concerning their application. 26Rule 112 has been repealed. It was repealed in circumstances where the CP Act was amended to extend it to the Industrial Relations Commission (see Courts and Crimes Legislation Further Amendment Act 2009 - Act No 77 of 2009). The UCPR was amended to extend the Rules to the Commission by the Uniform Civil Procedure Rules (Amendment No 31) 2009. Rule 1.5(1) and (2) of the UCPR provide: (1) Subject to subrule (2), these rules apply to each court referred to in Column 1 of Schedule 1 in relation to civil proceedings of a kind referred to in Column 2 of that Schedule. (2) In respect of each court referred to in: one of Schedule 1, civil proceedings of a kind referred to in Column 2 of that Schedule are excluded from the operation of each provision of these rules referred to in Column 4 of that Schedule in respect of those proceedings. 27Schedule 1 of the UCPR indicates that the UCPR applies to all civil proceedings in the Industrial Court with certain exceptions identified in Column 4 of Schedule 1. Part 11 of the UCPR is not amongst the exceptions so that on the face of Schedule 1, Pt 11 of the UCPR applies to the Industrial Court. 28Because the rules of the Industrial Court are taken to include the uniform rules to the extent to which they are applicable in that court (see s 10 of the CP Act), prima facie, Pt 11 of the UCPR applies to the Industrial Court. Because s 162(2)(f) authorises the rules in Pt 11 of the UCPR, prima facie, the Industrial Court has jurisdiction to authorise service of originating process outside Australia in accordance with Pt 11 and Schedule 6 of the UCPR. 29The IR Rules prevail over those in the UCPR (see r 1.7 and Schedule 2 of the UCPR). However, r 112 was not included in the local rules, that is, the IR Rules. Thus the only rules governing service outside Australia that could apply to the Industrial Court are those rules in Pt 11 of the UCPR. 30Mr Cochran, however, submitted that because of the decision of the Court of Appeal in Studorp, Pt 11 of the UCPR does not apply to the Industrial Court. Studorp was concerned, inter alia, with whether the primary judge was correct to set aside the service outside Australia of a statement of claim filed in the Dust Diseases Tribunal because that service was not authorised by Pt 11 of the UCPR. 31At [53], [98] and [99] Hoeben JA (with whom Allsop P and Meagher JA agreed) stated: [53] In the proceedings before Adamson J, Studorp was the plaintiff and Mr Robinson was the defendant. Her Honour upheld Studorp's submission that although Part 11was not referred to in Schedule 1 of the UCPR, it applies only to proceedings in the Supreme Court. As a result, UCPR 1.5 was not sufficient to authorise effective service of the DDT originating process outside the jurisdiction if a plaintiff does not submit to the DDT's jurisdiction. Her Honour said: [42] I prefer the plaintiff's construction of Rule 1.5, Schedule 1 and Part 11of the UCPR. The fact that the rule-making body saw fit to provide expressly that Part 11 applies to proceedings in the Supreme Court is sufficient, in my view, to displace any inference that the absence of reference to Part 11 in Column 4 of Schedule 1 means that it applies to the DDT. ... [98] Mr Robinson submitted that the obvious meaning of Schedule 1 when taken with rule 1.5 UCPR is that the DDT is authorised to serve its process outside Australia. This is because there is no mention of Part 11 in the fourth column of Schedule 1. Mr Robinson submitted that such an interpretation is consistent with s 10(4) DDT Act which specifies that the Tribunal "has the same power to make decisions as the Supreme Court would, ...". [99] Her Honour's reasons for rejecting that argument are set out at [53] hereof and are, with respect, correct. 32Hoeben JA also stated at [106]-[108]: [105] Mr Robinson submitted that it was pursuant to rule 11.4 UCPR that the Supreme Court retained the authority which it traditionally had to determine whether proceedings should go forward if a defendant did not appear. He submitted that in the case of the DDT, the supervisory role of the Supreme Court was not needed because s 10(4) DDT Act would enable the DDT to make that determination for itself. [106] There are a number of difficulties with that submission. If it were correct, any of the courts identified in Schedule 1 which did not have Part 11 UCPR included in the fourth column of the Schedule would be able to issue process outside the jurisdiction without authorisation. Such an interpretation is contrary to the practice in New South Wales, where Part 11 UCPR and its predecessors have not been interpreted in such a way. The District Court, for example, has never regarded itself as being able to issue process in that way, yet it would be able to do so if Mr Robinson's submission were to be accepted. [107] There is another more fundamental difficulty. The issuing of an originating process overseas involves at the very least a requirement expressed in peremptory terms by New South Wales for the attendance of a party at a time and place specified in the document. There is always some delicacy involved in dealings of such a kind between one sovereign polity and another. Real questions of international comity can be involved. It is for this reason that the issuing of such originating process has been by superior courts with the matter then being remitted to inferior courts, such as the District Court, once the superior court has satisfied itself as to the appropriateness of the matter continuing. [108] There is nothing in Part 11 UCPR to indicate that a contrary approach should be followed. Part 11 looked at as a whole clearly envisages the authorisation and subsequent approval being conducted entirely within the Supreme Court. 33In Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 the Court of Appeal applied the finding in Studorp in relation to the District Court. At [23] Macfarlan JA (with whom Ward and Gleeson JJA agreed) stated: [23] This analysis does not lead to the conclusion that Part 11 of the UCPR, which is concerned with the service of documents outside Australia, is applicable to the District Court, as by its terms, that Part is confined in its application to the Supreme Court (UCPR r 11.1; Studorp Ltd v Robinson [2012] NSWCA 382 see [106] - [108]). That leaves service of District Court process to be regulated by Part 10 of the UCPR. 34In my opinion, the analysis in Studorp and applied in Flo Rida does not apply to the Industrial Court. Studorp was concerned with the Dust Diseases Tribunal and Flo Rida with the District Court, both inferior courts. The Industrial Court is a superior court of record with equivalent status to the Supreme Court: see s 152 of the IR Act. There is no indication that in repealing r 112 of the Commission's 1996 Rules the legislature intended that the Industrial Court should no longer possess jurisdiction to order service outside Australia. The intention, in my opinion, was that Pt 11 of the UCPR would apply in lieu of r 112 in order to "promote consistency in procedures across jurisdictions...". 35In the Minister's second reading speech (Hansard, Legislative Council, 29 October 2009) at 2 it was stated in relation to the Courts and Crimes Legislation Further Amendment Bill 2009: Schedules 2.6 and 2.11 to the bill amend the Civil Procedure Act 2005 and the Industrial Relations Act 1996 respectively, to enable the Civil Procedure Act and Uniform Civil Procedure Rules to be applied in civil proceedings in the Industrial Relations Commission. The application of the Civil Procedure Act and Uniform Civil Procedure Rules is consistent with Government efforts to increase the efficiency of the court system and to promote consistency in procedures across jurisdictions where appropriate. The amendments have the strong support of the President of the Industrial Relations Commission. The President will be a member of the Uniform Rules Committee, or he may nominate a judicial member of the commission to represent him on the committee. 36Given this background, which was not any part of the consideration in Studorp or Flo Rida, Pt 11 of the UCPR should be construed as applying to the Industrial Court. Thus, to summarise the position: (a) section 162(2)(f) of the IR Act authorizes the making of rules relating to service outside Australia for the reasons given in Gough & Gilmour (No 2); (b) the IR Act does not itself contain any provisions specifically regulating the manner of service of initiating process. However, ss 185 and 186 provides for the Rule Committee established under the Act to make rules concerning a variety of matters including "the initiation of proceedings in the Commission". Such rules were formerly contained in Part 15 of the Industrial Relations Commission Rules 1996, which included r 112. Since the enactment of the CP Act and the making under that Act of the UCPR, the mode of service of initiating process in the Industrial Court has been regulated by Part 10 and Part 11 of the UCPR. The UCPR were made pursuant to the rule making powers conferred on the Uniform Rules Committee by s 9(1) of the CPA; (c) section 10(1) of the CP Act provides that "[r]ules of court are taken to include the uniform rules to the extent to which they are applicable in that court". Section 21 of the Interpretation Act 1987 defines "rules of court" to mean "rules made by the person or body having power to make rules regulating the practice and procedure of the court or tribunal". As the Uniform Rules Committee has power to make rules concerning the Industrial Court, given the applicability of the CP Act to the Industrial Court (see s 4, Sch 1), the effect of s 10 is that the UCPR are to be treated as if they were rules made under s 185 of the IR Act to the extent that they are stated to apply to that Court. It follows that service of a summons for relief in accordance with Part 11 of the UCPR is service as contemplated by s 162(2)(f) of the IR Act. 37It is acknowledged that r 11.1 states that Pt 11 applies to proceedings in the Supreme Court. However, the UCPR has to be read as a whole. In addition to the consideration that a combination of r 1.5(1) and (2) and Schedule 1 of the UCPR do not exclude Pt 11 from application to the Industrial Court, where the intention is that a provision is to apply exclusively to the Supreme Court that is made clear by stating the provision is to apply only to the Supreme Court: see Division 1 of Pt 40. 38Further, whether a provision is to be construed as applying exclusively to the Supreme Court, context and purpose will be important. These were relevant considerations in Studorp and Flo Rida. There is no indication that the purpose in making Pt 11 of the UCPR was to cut down the jurisdiction of the Industrial Court, a Court equal in status to the Supreme Court, by making that Part applicable exclusively to the Supreme Court. 39As Studorp and Flo Rida make clear, neither the Dust Diseases Tribunal nor the District Court ever possessed jurisdiction to authorise service outside Australia and the purpose of making the UCPR was not to confer that jurisdiction. 40If I am wrong about Pt 11 of the UCPR providing the relevant rule to authorise service outside Australia, I rely on s 162(2)(f) in conjunction with s 185C of the IR Act, which relevantly enables the Court to make directions with respect to any aspect of practice or procedure not provided for by the IR Act or the CP Act. 41Finally, I note Mr Cochran sought to rely on r 10.8 of the IR Rules or, in the alternative, on r 12.11 of the UCPR to: (a) set aside the service of the originating process, (b) declare that the originating process has not been duly served, (c) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State, (d) discharge any order extending the validity for service of the originating process. 42If the Court has no jurisdiction to authorise service of originating process outside the State, as Mr Cochran submitted, it is difficult to see how it has jurisdiction to set it aside and r 10.8 would have no work to do. If the Court does have jurisdiction to authorise service outside the State, including outside Australia, then r 10.8 has work to do. Rule 12.11 of the UCPR would have no application because r 10.8 of the local rules prevail.

Orders 43The Court makes the following orders: (1) The notice of motion of Mr Charles Cochran is dismissed. (2) Mr Cochran shall pay Ms Sutton's costs of the motion.

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