The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union v SafeWork NSW

(1) The person to whom the provisional improvement notice was issued. (2) The health and safety representative who issued the provisional improvement notice. 4 Section 102 (decision on review of provisional improvement notice) (3) A worker whose interests are affected by the decision. (4) A health and safety representative who represents a worker whose interests are affected by the decision. (5) A person conducting a business or undertaking whose interests are affected by the decision.

… 229 Application for external review (1) An eligible person may apply to the Industrial Relations Commission for review (an external review) of: (a) a reviewable decision made by the regulator, or (b) a decision made, or taken to have been made, on an internal review. (2) The application must be made: (a) if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant's notice, or (b) in the case of any other decision, within 14 days after the day on which the decision first came to the applicant's notice, or (c) if the regulator is required by the Industrial Relations Commission to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided. (3) The Industrial Relations Commission may stay the operation of a decision that is the subject of an external review pending a decision on the review. (4) The Industrial Relations Commission may, on an external review, confirm, vary or revoke the decision concerned.

1. It is common ground between the parties that the Union is not an "eligible person" for the purposes of s 223 of the WHS Act and therefore was not entitled to bring the Application under s 229.
2. On 7 August 2018 the Union filed a notice of motion ("Motion") seeking an order pursuant to s 170(1) of the Industrial Relations Act 1996 (NSW) ("IR Act") to amend the proceedings "so as to correctly identify the Applicant as Mr Ben Kruger [sic]."
3. The Motion named the applicant on the motion as "Mr Ben Kreger". Mr Kreger is a member of the Union.
4. The respondent opposed the Motion.

The Union's Case

1. In support of the Motion the Union read an affidavit sworn by Adam Jacka, National Legal Officer for the Union, on 7 August 2018. In that affidavit, Mr Jacka outlines the circumstances that led to the provisional improvement notice being issued, and the process that resulted in it being cancelled by the respondent. For present purposes it is not necessary to go into those matters.
2. Annexed to Mr Jacka's affidavit is an email from Mr Kreger to Ms Danalis dated 29 June 2018. That email is in these terms: "I, ben kreger authorize the maritime union of Australia division of the construction, forestry, maratime, mining and energy union to act on my behalf to seek external review by the IRC pursuant to sections 229 of the work place health and safety act 2011 of the decision of worksafe dated 12th June 2018." [sic]
3. In his affidavit Mr Jacka deposes as follows: "11. I am unable to contact Ms. Danalis as she is on annual leave in Greece. Having regard to the above, and in particular the haste with which the Application was filed I believe Ms. Danalis made a mistake in naming the Union as the Applicant in the Application and that she intended to name Mr Kreger as the Applicant. It appears to me, especially having regard to Mr Kreger's involvement in the whole of the matter and the his [sic] email of 29 July 2018 that it was always intended that Mr Kreger was to be the Applicant in the proceeding and the Union's name and status has been incorrectly put on the Application."
4. Although Mr Jacka refers to an email of 29 July 2018 I take him to be referring to the email of 29 June 2018 referred to at [10] above. No other email authored by Mr Kreger is in evidence.
5. The Union made submissions as to the Commission's powers under s 170(1) of the IR Act. It drew my attention to the following four cases in which the power in s 170(1) has been utilised, or been found wide enough to be utilised, by the Commission and the previous Industrial Court to amend proceedings: John William Burden v Walgett Shire Council [2006] NSWIRComm 169; Transport Workers' Union of Australia, New South Wales Branch v Jack Seatons Transport Pty Limited [1999] NSWIRComm 222; William North v Consolidated Gaming Corporation Ltd (2000) NSWIRComm 258; and, Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190.
6. The Union submitted that the broad power under s 170(1) of the IR Act must be exercised in accordance with the requirement that the Commission act according to the equity, good conscience and substantial merits of the case and without regard to technicalities or legal forms: s 163(1)(c) of the IR Act. In the present matter, it must also be applied against the framework effected by the WHS Act, including the objects in s 3 of that Act which include protecting workers against harm to their health and welfare and ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under the WHS Act.
7. Applying these principles to the present case the Union contended as follows: 1. It is plain that Mr Kreger's union representative made an error in describing the Union as the applicant for the matter and not him. The error was the Union's and not Mr Kreger's. 2. Amending the proceedings to correct the misdescription is imperative to ensure that the correct applicant is listed. The application for external review of the respondent's decision was always one that was intended to be made by Mr Kreger but, because of an error by a lawyer employed by the Union, the wrong applicant was stated on the Application. 3. The proceedings have not reached a stage where significant cost and expense will be incurred if the Application is amended to state the correct applicant. Such an amendment will not have any practical effect on the parties or their conduct of the case. 4. The respondent has not been deprived of any opportunity to meet or understand the case brought against it, particularly in circumstances where the proceedings to date have gone no further than the listing of conciliation and where the respondent is and has always been aware of Mr Kreger's status as a HSR. The respondent has pointed to no prejudice accruing to it if the amendment is made and cannot sensibly suggest any. 5. The respondent's objection to the amendment application is arid and technical. It is entirely unmeritorious and no more than an attempt to avoid the real issues in dispute being determined by the Commission.
8. During the hearing on the Motion counsel for the Union further submitted that under s 65(2)(b) of the Civil Procedure Act 2005 (NSW) ("CP Act") the Commission is empowered to correct the error.

The respondent's case

1. The respondent made the following submissions: 1. The Union is not entitled to apply for an external review under s 229 of the WHS Act because it does not fall within the list of eligible persons. If the legislature intended to give a right to unions to apply for review of a reviewable decision, it would have included unions in the list of eligible persons within s 223 of the WHS Act. It has not done so. 2. The proceedings are a nullity because a union does not have standing under the WHS Act to commence proceedings for external review. The proceedings cannot be characterised as merely "irregular". 3. Accordingly, the Commission cannot make an amendment to the proceedings pursuant to s 170(1) of the IR Act despite the fact that the Commission might consider it to be necessary in the interests of justice to do so. If it were to do so, it would be an error of law. 4. Sections 64 and 65 of the CP Act and Part 19 of the Uniform Civil Procedure Rules 2005 concern amendments. An amendment may be permitted to correct a "mistake" in the name of the party: CP Act s 65(2)(b); however, there is a difference between a misnomer or misdescription on the one hand, and a misjoinder or substitution on the other. 5. Notwithstanding the width of ss 163 and 170 in the IR Act, there is nothing in the IR Act or the Industrial Relations Commission Rules 2009 that will save the proceedings as the Commission has no jurisdiction to deal with the proceedings as filed. The Commission's jurisdiction is only enlivened in respect of an application pursuant to s 229 of the WHS Act when an "eligible person" makes the application.

Relevant legislation

1. Sections 163 and 170 of the IR Act are in the following terms: 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. … 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.
2. It was common ground that the CP Act applies to civil proceedings in the Commission: s 4 and Sch 1 of the CP Act. Sections 64 and 65 of the CP Act are in these terms: 64 Amendment of documents generally (cf SCR Part 20, rules 1 and 4; DCR Part 17, rules 1 and 4) (1) At any stage of proceedings, the court may order: (a) that any document in the proceedings be amended, or (b) that leave be granted to a party to amend any document in the proceedings. (2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings. (3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made. (4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party. (5) This section does not apply to the amendment of a judgment, order or certificate. 65 Amendment of originating process after expiry of limitation period (cf SCR Part 20, rule 4; DCR Part 17, rule 4) (1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings. (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as: (a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or (b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court's opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process. (3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced. (4) This section does not limit the powers of the court under section 64. (5) This section has effect despite anything to the contrary in the Limitation Act 1969. (6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.

Consideration

1. The Union admits that it made an error. The evidence of Mr Jacka is that Ms Danalis "intended to name Mr Kreger as the Applicant". This evidence, referred to at [11] above, was accepted over the objections of counsel for the respondent, on the basis that I would consider the weight that should be given to that evidence. The evidence is little more than a statement of Mr Jacka's belief as to Ms Danalis' intentions at the time she prepared the Application. It is clear that he has formed this opinion in the absence of having spoken to Ms Danalis. I do not place great weight on the evidence.
2. In any event, whatever may have been Ms Danalis' intentions, the fact is that the Application was made in the name of the Union. That was an error.
3. The question for determination is whether either s 170(1) of the IR Act or s 65(2)(b) of the CP Act are available to correct that error.
4. I have come to the conclusion that they are not.
5. Counsel for the respondent submitted that these proceedings are a nullity. For the reasons which follow, I agree with those submissions. This does not, however, preclude me from deciding whether or not the Commission has jurisdiction: Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at [16], citing Re Macks; Ex parte Saint [2000] HCA 62; (2000) 204 CLR 158.
6. In Deveigne & Anor v Askar [2007] NSWCA 45 McColl JA conducted an examination of "decisions in which the courts have considered whether proceedings, or a step in them, constituted a nullity": at [85]. Her Honour demonstrated that a common criterion for distinguishing between nullities on the one hand and mere irregularities on the other is whether the defect is capable of being waived by the other party: at [88], [89], [94], [95] and [96].
7. Additionally, in Gorman and anor v Parkinson and ors [2008] NSWIRComm 99 Marks J, having considered at length the decision of McColl JA in Deveigne, stated: [20] Without traversing in any detail the extensive authorities referred to by McColl JA, there may be gleaned from them an underlying principle that proceedings will be characterised as a nullity and therefore of no effect where this is brought about by a fundamental defect. There is reference at para [94] of her Honour's judgment to categories of fundamental defects postulated by Upjohn LJ in re Pritchard (deceased) [1963] 1 Ch 502. These are proceedings which "are nullities because they have not been properly begun or served."
8. If proceedings are found to be a nullity it is not possible for them to be amended: Marshall v D G Sundin & Co Ltd (1989) 16 NSWLR 463 at 474-475; Darrington v Caldbeck (1990) 20 NSWLR 212 at 220.
9. In Deveigne McColl JA stated: [128] In Cameron v Cole, Latham CJ said (at 584) "if an 'order' is null and void ab initio [t]here is then no real order of the court". Accordingly, if proceedings are a nullity, there is no jurisdiction to amend them because "[i]n effect, no proceeding was ever issued, and there is nothing to amend": Prior v Hannaford [1970] VR 772 (at 778).
10. In relation to the application of irregularity provisions McColl JA in Deveigne stated: [141] Subsequent cases have adopted the "wide and generous" approach to irregularity provisions: see Italiano v Carbone & Ors [2005] NSWCA 177 at [17] per Spigelman CJ. It should be noted, however, that they are intended to deal with procedural irregularities, not jurisdictional errors of a fundamental kind, such as an ultimate decision made by a decision-maker who did not have the capacity to exercise the statutory power: Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 at [97] per Spigelman CJ (Tobias JA agreeing).
11. I also have regard to Campbell v Brazel [2016] NSWSC 198. In that case the plaintiffs had commenced proceedings at a time when they had no title to the causes of action being pleaded, that title having previously vested in their trustees in bankruptcy. The plaintiffs invoked ss 64 and 65 of the CP Act. Fagan J made the following observations: [24] Neither of these sections assists the plaintiffs. Both, on my reading of them, are premised upon the existence of proceedings which are competent. There is no indication in the language in the sections that they are intended to apply in such a way as to permit an amendment of proceedings which are a nullity from the outset by reason of the lack of standing of the plaintiffs to sue. To my understanding the concept of a power to "amend" a proceeding which is a nullity in that sense, in such a way as to convert it by amendment into a valid proceeding, would involve contradiction and incongruity. [25] If it had been the intention of the legislature effectively to abolish the null status of a proceeding such as the present and to render all proceedings capable of being made competent no matter how fundamental the defect in their commencement, then very clear expression of such legislative intent would have been required. It is not to be found in ss 64 and 65.
12. In my view, his Honour's comments apply equally in relation to s 170(1) of the IR Act. In Manpac Industries the Full Bench suggested at [44] that there should be a consistency in approach towards s 170(1) of the IR Act on the one hand and provisions such as ss 64 and 65 of the CP Act on the other.

Conclusions

1. Contrary to the applicant's submissions, this is not simply a case of misdescription. There exists a fundamental defect. Only an "eligible person" as defined in s 223 of the WHS Act is entitled to commence proceedings under s 229 of that Act, and so invoke the Commission's jurisdiction. The Union had no capacity to do so.
2. Since the defect goes to jurisdiction it cannot be waived; the parties cannot by consent confer a jurisdiction on the Commission which it does not possess: Strachan v Gleaner Co Ltd & Anor [2005] UKPC 33; [2005] 1 WLR 3204, cited in Deveigne at [94].
3. It follows that the proceedings are a nullity.
4. It also follows, for the reasons set out at [27] to [31] above, that it is not possible to amend the proceedings to rectify the deficiency. This includes amendment through the use of s 170(1) of the IR Act or s 65(2)(b) of the CP Act.
5. On the basis of having made these decisions it is not necessary to consider whether the applicant could otherwise have used either s 170(1) of the IR Act or s 65(2)(b) of the CP Act to substitute Mr Kreger for the Union in the manner sought by the Motion.
6. Having found that the proceedings are a nullity the Motion must necessarily be dismissed. More significantly, the proceedings themselves must be dismissed.

Order

1. I make the following orders: 1. The notice of motion filed by the Union on 7 August 2018 is dismissed. 2. The proceedings are dismissed. Damian Sloan Commissioner

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: 14 September 2018