Truelove v Sydney Water Corporation Limited and anor

Mr A Searle of counsel Solicitor: Mr G Francis Sagacious Legal Pty Ltd

LEGAL REPRESENTATIVES: FIRST AND SECOND RESPONDENT Mr R F Crow of counsel Solicitor: Mr B Williamson Workplace Law

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Walton J, Acting-President Boland J Staff J Thursday 7 October 2004

Matter No. IRC 3271 of 2004 STEPHEN NEIL TRUELOVE v SYDNEY WATER CORPORATION LIMITED AND ANOTHER

Application by Stephen Neil Truelove for leave to appeal and appeal against a decision of Justice Marks given on 14.5.2004 in matter no. IRC 5850 of 1996 STATEMENT AND DIRECTIONS OF THE FULL BENCH [2004] NSWIRComm 298

1 The respondents to these proceedings have brought an application in the NSW Court of Appeal seeking prerogative relief (Sydney Water Corporation v Industrial Relations Commission of NSW and Truelove - Court of Appeal Matter No. 40666 of 2004). Notwithstanding their success at first instance, the absence of any substantive consideration of a jurisdictional issue at first instance, the hurdle facing the appellant due to the operation of s 188 of the Industrial Relations Act 1996 and some more recent discussion by Full Benches of the Commission concerning Reich v Client Server Professionals of Australia Pty Limited (2000) 49 NSWLR 551, the respondents have taken this course because they believe they have better prospects of success in some respects in the NSW Court of Appeal.

2 The respondents expect their fortunes will be better before that Court because they anticipate a more favourable outcome to their challenge to the majority decision in Reich (although the appellants contend that an issue of that character does not relevantly arise in these proceedings). The respondents' view is apparently derived from observations of Spigelman CJ in Mitchforce v Industrial Relations Commission of NSW (2003) 57 NSWLR 212; and Handley JA in Solution 6 Holdings Limited & Ors v Industrial Relations Commission of NSW & Ors [2004] NSWCA 200, although neither of those matters involved any issue directly relevant to what the majority decided in Reich.

3 The timing of the application brought by the respondents in the Court of Appeal is designed to avoid the impact of the provisions of s179 of the Act by the respondents contending that the decision of Marks J at first instance in their favour was not a decision for the purposes of that section. The matter was heard before the Court of Appeal on 21 and 22 September 2004 (after the application before that Court was lodged on 13 August 2004). Had the respondents waited until after any decision by the Full Bench of the Commission on the appeal, the opportunity for contending s179 had no application could have been lost. However, the Court of Appeal reserved its decision thus allowing for the possibility of a decision of this Commission in the appeal before the decision of the Court of Appeal is delivered.

4 On 23 September 2004 the solicitors for the appellant wrote to the Associate to the Acting President of the Commission advising that the Court of Appeal had reserved its decision and had granted liberty to the respondents to apply for interim relief. Those solicitors also advised that they had been asked to convey to this Full Bench the Court of Appeal's "request that it be given time to consider its decision before the appeal before the Commission is heard". In the same communication the appellant's solicitors indicated: … in these circumstances, the appropriate course of action may be for the Full Bench to wait - list another appeal on 14 October. If by 7 October the Court of Appeal has not handed down its decision, we will inform the Commission and the Commission can vacate the hearing of the appeal at that time.

5 Mr A Searle of counsel, who appeared for the appellant, submitted that the purpose of the letter was to outline the situation as understood by the appellant and to suggest a possible way forward noting that how the Commission organises its business is a matter for the Commission. Mr Searle made it clear that what his client proposed was that if, by 7 October 2004, the Court of Appeal had not handed down its decision, the appellant would inform the Commission and the Commission could then give consideration to vacating the hearing.

6 Mr Crow, counsel for the respondents, sought to treat the appellant's letter as an application for the vacation of the hearing date of 14 October 2004, which it supported. Upon the appellant's position being made clear, Mr Crow made an application to have the hearing date of the appeal vacated.

7 We have decided, not without considerable reservation on our part given that the hearing of the appeal is ready to proceed shortly, to adopt the approach contended for by the appellant. This recognises the acquiescence of the appellant in the vacation of the hearing of the appeal in the event that the decision of the Court of Appeal is not published in sufficient time to enable the appeal to proceed at that time. However, that approach also recognises that every opportunity should be allowed for the appeal to proceed.

8 Our decision to adopt the approach proposed by the appellant in this case has been influenced heavily by the appellant's preparedness to vacate the hearing on 14 October if that becomes necessary and also by the Court of Appeal's request for time to consider its decision before the hearing of the appeal by this Commission. It should be made clear, however, that parties should not expect as a matter of course the Commission will give favourable consideration to the vacating of hearing dates because a respondent is seeking prohibition in the Court of Appeal, especially if preparations for the appeal have been completed or largely completed, a date has been fixed and the appellant wishes the appeal to proceed. These factors will obviously be compounded if the application is made late in the proceedings. In this respect, we note the observations of Mason P (with whom Hodgson and McColl JJA agreed) in Mayne Nickless Limited v Industrial Relations Commission of New South Wales & 3 Ors [2004] NSWCA 359 at [11] relating to first instance proceedings in the Commission: The Commission proceedings have been set down for hearing to commence on 2 November 2004. Hearing dates previously set to commence on 28 September 2004 were vacated when an early hearing date was fixed for the Summons in this Court. The Commission's courtesy in doing so is appreciated, but should not be seen by litigants as establishing a practice. Claimants who file applications for prohibition in the Court of Appeal (especially late ones) should not presume that their proceedings in this Court will be expedited, nor should they view the pendency of proceedings in this Court as any dispensation from obligations under Rules or directions of the Commission as regards preparation for a hearing in the Commission. 9 We referred to reservations we hold about the prospect of having to vacate the hearing date in this appeal and it is appropriate that we express more fully those concerns. First, whilst we can well understand that the respondents may wish to seize every forensic advantage available to them (where they have resources to do so) and, as their counsel frankly concedes, engage in "forum shopping", it is difficult to perceive how such processes can be in the interests of the proper administration of justice.

10 Secondly, the respondents seek to avoid the effect of s 179 by the timing of their application in the Court of Appeal. This is not, however, a case such as Solution 6 (which itself is under challenge in the High Court of Australia), as there has been a decision of the Commission which is under appeal. The narrow gap through which the respondents hope to pass is, in essence, that the decision given is not one protected because of its success at first instance. This raises real questions about the intention of Parliament being respected and as to the unfortunate consequences deriving from this situation.

11 Thirdly, it would appear that as a consequence of the judgment in Solution 6 in particular, respondents are increasingly taking steps along similar lines to the respondent in these proceedings, that is, if there is the prospect of a jurisdictional challenge, go first to the Court of Appeal rather than have the issue tested on appeal in the Commission in Court Session (indeed, in a number of cases without even an initial directions hearing before a single judge). A difficulty will inevitably arise where a party has a result at first instance, an appeal has been filed, then a party initiates proceedings in the Court of Appeal after a programme has been set and a hearing date fixed for the appeal. This is a case where the appellant has actually been put to the expense of filing and serving its submissions on the appeal (23 July 2004) before the proceedings were commenced in the Court of Appeal. Depending upon the outcome of proceedings in the Court of Appeal and in the appeal proceedings before us the appellant may actually be exposed to a further set of proceedings for prerogative relief (although s 179 of the Act would presumably then apply).

12 Fourthly, any decision by us to vacate the hearing of the appeal listed for 14 October 2004 because the Court of Appeal has not handed down a decision on the respondents' application will result in a considerable delay in the appellant's case being heard (if the respondents are unsuccessful before the Court of Appeal) having regard to the Commission's heavily congested list. Given the short period of time between now and 14 October 2004 it is impossible to use that date for the hearing of another appeal.

13 As we have indicated, despite our reservations, we have decided to adopt the approach proposed by the appellant. Accordingly, we direct the appellant to write to the Associate to the Acting President and advise by no later than 3pm on 8 October, whether the Court of Appeal has delivered judgment. Upon receipt of this advice, the Full Bench will further consider the application made on 24 September 2004. If we are advised that the Court of Appeal has not delivered judgment by that date we will vacate the appeal proceedings on 14 October 2004. _______________________

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