UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) v INDUSTRIAL RELATIONS COMMISSION OF NSW IN COURT SESSION & Anor

The applicants sought orders varying their contracts of employment by the insertion of terms requiring compliance with principles of natural justice and the giving of lengthy notice periods prior to termination.

In the period after it had filed a Reply in each proceeding, the claimant sent letters to the applicants instructing them to attend meetings for the purpose of responding to the allegations of misconduct made by the claimant in the Replies. When the applicants refused to attend an appointed meeting their employment was terminated.

The Commission in Court Session (comprising Marks and Haylen JJ, Boland J dissenting) held that the claimant's actions constituted a contempt as regards the pending s106 proceedings. No formal declarations were made and the proceedings were stood over for further hearing as regards penalty.

In the proceedings before this Court the claimant sought: (1) an order restraining the Commission and its Registrar from taking any further step in the contempt proceedings; (2) a declaration that the "judgement and orders" of the Commission were without power and/or jurisdiction; (3) an order in the nature of certiorari setting aside the "judgement and orders" of the Commission; (4) further, and only if necessary for the purpose of obtaining the principal relief sought, a declaration that s179 of the Act is invalid because it is inconsistent with Chapter III of the Constitution.

The claimant submitted that the Commission's jurisdiction to punish for contempt under the Act depends on the actual or objective occurrence of a jurisdictional fact, being either: · that the person is in truth "guilty of contempt"; or · that on the face of the proceedings the conduct in which the person is alleged to have been engaged can amount to a contempt of court.

HELD: per Mason P (Spigelman CJ and Handley JA agreeing) dismissing the Summons:

(1) The Commission has and/or had jurisdiction to hear and determine the contempt proceedings launched against the claimant. · There is a strong interpretative presumption against a statute making a court's jurisdiction dependent upon a jurisdictional fact; · Jurisdictional error is not confined to making decisions of a kind lying wholly or partly outside the theoretical limits of functions or powers; · A jurisdictional fact is an "essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has." The question of whether or not facts are jurisdictional turns on the proper construction of the statute; · An important indication of parliamentary intention is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by a primary decision-maker.

Craig v South Australia (1995) 184 CLR 163 and Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 applied.

(2) The relevant jurisdictional fact required to enliven the Commission's jurisdiction to punish for contempt under s164(2) is a finding by the Full Bench of the Commission in Court Session that a person is guilty of contempt.

(3) Nothing in the form of s180 suggests that the fact of guilt is itself jurisdictional.

(4) The evidence relied upon was capable of supporting the charges. The matters taken into account by the majority did not betray jurisdictional error.

(5) It is unnecessary to consider the constitutionality of s179 as the Commission acted within its jurisdiction whether or not such jurisdiction was effectively enlarged by s179.

ORDERS The Summons should be dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SPIGELMAN CJ MASON P HANDLEY JA

UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) v THE INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION & Anor JUDGMENT

1 SPIGELMAN CJ: I agree with Mason P. 2 MASON P: The question at issue is the jurisdiction of the Industrial Relations Commission of New South Wales in Court Session to hear and determine particular charges of contempt of the Commission brought against the claimant. 3 The Commission in Court Session was joined as the first opponent in these proceedings. It properly adopted a submitting stance. The second opponent was the Industrial Registrar of the Commission who is the moving party in the contempt proceedings before the Commission. 4 The claimant is constituted by s12 of the Uniting Church in Australia Act 1977. On 30 August 2001 it was sued as the second of three respondents in two proceedings each commenced by Summons in the Commission seeking relief under s106 of the Industrial Relations Act 1996 (the Act). The applicants were Ms Jeskie and Mr Rocks, who were employed as managers at the Wesley Gardens Aged Care Management Centre at Belrose. They had been stood down on full pay pending an investigation into financial and organisational issues concerning the operation of the Centre. 5 The applicants sought orders varying their contracts of employment by the insertion of terms requiring compliance with the principles of natural justice and the giving of lengthy periods of notice before termination. Much of the relief was designed to ensure that the dispute would be addressed in a fair manner. Orders for the payment of compensation were also sought. 6 The claimant filed a Reply in each proceeding setting out details of the applicants' conduct that had prompted its actions. The Reply indicated that these matters would be relied upon in opposition to the application. 7 Each application appointed 22 November 2001 as the first mention date before the Commission. However, on 15 October 2001 Schmidt J granted the applicants' request for expedition and set the matters down for conciliation on 26 November 2001. 8 As was its right, the claimant continued to address the wider financial and organisational issues at the Centre. In neither proceeding was there any application for interim relief. The correspondence referred to below indicates that the claimant endeavoured to act in a way it and its lawyers thought consonant with fairness to the two applicants, its management concerns and the proper resolution of the issues tendered for determination by the Commission. The Commission in Court Session has, however, held that the claimant's actions constituted a contempt as regards the pending s106 proceedings. 9 Section 180 of the Act provides: Contempt of Commission - offence (1) A person in contempt of the Commission is guilty of an offence. Maximum penalty: 500 penalty units in the case of a corporation or, in any other case, 50 penalty units or imprisonment for 6 months, or both. (2) For the purposes of subsection (1), conduct is a contempt only if the same conduct in relation to the Supreme Court would be a contempt of the Supreme Court. (3) Proceedings for an offence against this section may be taken only before the Commission in Court Session.

10 Section 153(2) of the Act also provides that functions relating to proceedings for contempt may be exercised only by a Full Bench of the Commission in Court Session. 11 Section 164(2) provides: The Commission in Court Session may exercise the functions of the Supreme Court in relation to the apprehension, detention and punishment of persons guilty of contempt of the Commission (including disobedience of any order made by or process issuing out of the Commission).

12 On 20 March 2002 the Commission directed its Registrar to commence proceedings for punishment for contempt. On 7 August 2002 a Notice of Motion was filed in each proceeding, seeking declarations to the effect that the claimant was guilty of contempt on several bases and an order that it be punished or otherwise dealt with for such contempts. A Statement of Charge was appended to each Notice of Motion. Contempt was originally charged in ten "counts" that corresponded to the declarations sought in the Notice of Motion. Only five charges (F to J) were pressed, and only charges G and H resulted in findings of guilt. These stated: G. It is charged that the Second Respondent is guilty of contempt in requiring the Applicant to personally attend on the First and/or Second Respondents to answer the allegations made by the First and/or Second Respondents in the Reply to the Summons for Relief filed in these proceedings on 12 October 2001, in particular, under the heading "Summary of Additional Matters of Fact and Law" of that document, the First and/or Second Respondents acted in a manner calculated to interfere with or obstruct the due administration of justice. Particulars (i) Letter dated 23 October 2001 from Betty Anderson of the First and/or Second Respondents to [the Applicant] (ii) Letter dated 31 October 2001 from KPMG legal to Middletons Moore & Bevins (iii) Letter dated 1 November 2001 from Betty Anderson of the First and/or Second Respondents to [the Applicant]. H. It is charged that the Second Respondent is guilty of contempt in that in threatening the Applicant with detriment, including dismissal from his employment if the Applicant failed to answer, to the First and/or Second Respondents' indeterminate satisfaction, allegations made by the First and/or Second Respondents in the Reply to the Summons for Relief filed in these proceedings on 12 October 2001, in particular, under the heading "Summary of Additional Matters of Fact and Law" of that document, the First and/or Second Respondents acted in a manner calculated to interfere with or obstruct the due administration of justice.

Particulars (i) Letter dated 23 October 2001 from Betty Anderson of the First and/or Second Respondents to [the Applicant] (ii) Letter dated 31 October 2001 from KPMG Legal to Middletons Moore & Bevins (iii) Letter dated 1 November 2001 from Betty Anderson of the First and/or Second Respondents to [the Applicant]. 13 These particulars disclosed that the relevant charges were based on two letters emanating from Ms Betty Anderson, the chairman of Uniting Care Ageing and Disability Service and one letter from the claimant's solicitors. The letters instructed the applicants to attend appointed meetings for the purpose of responding to the allegations of misconduct made by the claimant in specified paragraphs of the Replies. Disciplinary action, including termination of employment, was foreshadowed as a consequence of failure to attend. When the applicants refused to attend a meeting proposed for 2 November 2001 their employment was terminated that day. The letters of termination stated that the most important failure on each employee's part was: …. failure to adequately reply to the matters raised with you. We must now be left with the assumption that the matters not properly replied to stand as a matter of fact.

14 These remarks suggest that the claimant may possibly have viewed its directives as having been designed to achieve some advantage which the rules of procedure in the Commission would otherwise have denied (cf (Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 476-8 per Gibbs CJ). In making this observation I am not implying that it was part of the case in the Commission that the claimant had acted with intent to obtain an unwarranted forensic advantage. The issue was the tendency of the claimant's conduct. 15 On 11 September 2002 the Registrar provided further particulars concerning Charges G and H as follows: The [Registrar] alleges that the [Claimant]: i. in directing Rocks and Jeskie to attend a meeting; ii. to compel Rocks and Jeskie to give replies 'to the allegations made within the paragraphs' (a) to (t) of paragraph 4 of the Summary of Additional Matters of Fact and Law; iii. in stating that 'if the answers given do not constitute credible denials or reasonable explanations, disciplinary actions may be implemented which could include the termination of your employment'; and iv. in stating that 'Failure to do so [attend the meeting] will be regarded as a serious disciplinary issue' acted in a manner calculated to interfere with the administration of justice by placing unreasonable pressure on Rocks and Jeskie: (i) to settle or compromise the proceedings; (ii) to withdraw the proceedings; (iii) to force them to comply with an instruction which was not authorized by any Court order; and (iv) to embarrass Rocks and Jeskie. …. The detriments threatened by the Respondents against Rocks and Jeskie were calculated to place unreasonable pressure on them to: (i) settle or compromise the proceedings; (ii) withdraw the proceedings; (iii) force them to comply with any instruction which was not authorized by any Court order; and (iv) to embarrass Rocks and Jeskie. 16 The progress of the s106 proceedings in the Commission when the various letters were sent was a matter of record. I have already referred to the nature of the relief sought by the applicants, the Replies filed by the claimant, the order for expedition and the conciliation hearing set down for 26 November 2001. 17 It is also relevant that on 29 October 2001, the day before the meeting requested by Ms Anderson in her letter of 23 October 2001, the applicants filed Responses to the claimant's Replies. These Responses dealt with the allegations contained in the Replies. There were denials in relation to certain allegations, the assertion of facts contradicting other allegations, and explanations in respect of a number of the allegations. 18 Issue had well and truly been joined in the Commission in relation to the very matters for which the claimant was demanding personal explanations from the applicants, under threat of dismissal, at the meeting appointed by the claimant to take place before the matter went to the Commission either for conciliation or determination. 19 The Notices of Motion were treated as a single matter which was heard by a Full Bench of the Commission in Court Session over three days in 2003. 20 On 20 November 2003 the Commission published the reasons for judgment by which the majority (Marks & Haylen JJ, Boland J dissenting ) found the claimant guilty of Charges G and H. The presiding judge, Marks J, then pronounced the following orders: The orders of the court therefore are that the respondent is found guilty of charges G and H and that each of the remaining charges is dismissed. The proceedings are stood over to enable submissions to be made on penalty. I ask the parties to discuss between themselves the time that they feel would be necessary to deal with the question of penalty and to make contact with my associate prior to 19 December next to allow the further hearing to be scheduled. Costs are reserved and liberty to apply is granted.

21 The "orders" that the claimant was found guilty of the two charges were not, in form, those sought in the respective Notices of Motion, which in paragraphs G and H sought: G. A declaration that the Second Respondent is guilty of contempt of court, in that between 10 October 2001 and 10 November 2001, the Second Respondent required Kevin Rocks and Wendy Jeskie to attend on the First Respondent to answer allegations made in the Reply to the Summons for Relief and did thereby act in a manner which had a tendency to interfere with the administration of justice with respect to two proceedings which were before the Industrial Relations Commission of New South Wales, Nos 5785 and 5786 both of 2001. H. A declaration that the Second Respondent did threaten Kevin Rocks and Wendy Jeskie with detriment if they failed to answer allegations made in the Reply to the Summons for Relief and did thereby act in a manner which had a tendency to interfere with the administration of justice with respect to two proceedings which were before the Industrial Relations Commission of New South Wales, Nos 5785 and 5786 both of 2001.

22 This discrepancy and some uncertainty of memory as to what exactly happened on 20 November 2003 led to an exchange of correspondence and affidavits which were filed, by leave, after the conclusion of argument in this Court. What is set out above is based on a transcript of the proceedings before the Commission on 20 November 2003 obtained after judgment in this Court was reserved. 23 In light of recently filed submissions I do not understand there to be any continuing dispute as to the primary facts. But there remains a dispute as to the status of the findings of guilt. It is relevant to an issue raised in this Court as to whether those findings represent "decisions" within the scope of s179 of the Act. 24 Section 179 provides: Finality of decisions (1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted): (a) is final, and (b) may not be appealed against, reviewed, quashed or called into question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise). (2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted. (3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission.

25 The claimant submits that the Commission's findings as to guilt did not represent "decisions" within s179 notwithstanding Marks J's use of the term "orders". The meaning of "decision" in this context is explained by Spigelman CJ in Solution 6 Holdings Ltd & Ors v Industrial Relations Commission of New South Wales & Ors [2004] NSWCA >, a judgment to be handed down concurrently with the decision in this Summons. That judgment also explains the circumstances in which an order in the nature of a writ of prohibition may issue in appropriate cases in advance of a "decision", with the consequence that the Supreme Court's hand is not stayed by s179 whatever its scope and validity. 26 It is open to the Commission to make declarations of right (s154). A formal declaration would be a "decision" that attracted s179. However, the claimant submits that the findings of guilt are merely conclusions of fact (cf s175) referable to a "decision" yet to be made by the pronouncement of formal declarations as to the claimant's guilt, if the Commission decides to make such orders. 27 It will be for the Commission to decide for itself the precise form of any declarations or orders whereby the claimant has been or will be found guilty of contempt on the two charges. It is possible that Marks J intended or intends to make declarations in accordance with pars G and H of the Notices of Motion. On the other hand, the Commission may have spoken in the way it did so as to preserve to itself the discretion to go no further than ordering costs, its authority having been sufficiently vindicated by the majority findings (cf s10 of the Crimes (Sentencing Procedure) Act 1999, Perkes v Landon (1988) 15 NSWLR 408, McIntyre v Perkes (1988) 15 NSWLR 417, R v Pearce (1992) 7 WAR 395). Resolution of these uncertainties is for the Commission. Any continuing dispute about the status and form of the pronouncements on 20 November 2003 only has relevance in this Court if it becomes necessary to decide whether our jurisdiction or power to grant the relief sought by the claimant is precluded by s179 of the Act. 28 Section 179 purports to deprive this Court of jurisdiction and most if not all remedial powers in relation to any "decision or purported decision" of the Commission. The general principle is that a court must be satisfied of its own jurisdiction before embarking upon any final determination of proceedings (The King v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 90-1). Does this mean that this Court must resolve whether the findings of guilt are "decisions" within s179 and, if so, whether s179 is constitutionally valid? We have heard argument on these matters, including that of the Solicitor General representing the Attorney General as intervener. 29 I have concluded that it is unnecessary to resolve this characterization issue or to embark the underlying constitutional challenge thrown up if the "orders" pronounced on 20 November 2003 involve a decision immunised from review by s179. It is, in my view, appropriate to proceed directly to the question as to the Commission's jurisdiction in the present matter by examining provisions other than s179. That is because I consider that the Commission acted within its jurisdiction whether or not that jurisdiction was effectively enlarged or protected from review by s179. Proceeding this way avoids the difficult issue (raised by the claimant, if necessary) of the constitutionality of s179. 30 For the reasons set out below, it is my view that the Commission has and/or had jurisdiction to hear and determine the contempt proceedings launched against the claimant. The proceedings were "proceedings for an offence against" s180 duly prosecuted before the Commission in Court Session in accordance with sub-s(3) thereof. The very terms of this sub-section conferred jurisdiction to hear proceedings for the offence created by sub-s(1). 31 The Full Bench's reasons in Industrial Registrar of New South Wales v The Uniting Church in Australia Property Trust (NSW) may be found at [2003] NSWIRComm 387 (Marks J and Boland J) and [2003] NSWIRComm 388 (Haylen J). A brief summary will suffice, this being a challenge as to jurisdiction and not an appeal. 32 For the majority justices, the case was seen as one where it had been proved beyond reasonable doubt that the claimant's conduct had had the tendency to subject the applicants, as litigants, to undue and improper pressure. That pressure trenched upon their freedom to conduct the proceedings in the Commission in the manner that they chose. It was no answer that the claimant's directions to attend meetings were the lawful commands of an employer. The letters and the threats they contained were examined in their context. Both Marks J (at [60-61]) and Haylen J (at [9] and [15]) placed considerable emphasis upon the centrality of conciliation as part of the Commission's processes for dealing with claims under s106 of the Act (cf s109). Their Honours also pointed out that the very relief claimed by the applicants was directed, in large measure, at establishing fair processes for dealing with the employment dispute that had arisen in the context of the wider management concerns. 33 The nub of Marks J's reasons was: 65. It is necessary to determine whether the respondent's conduct viewed objectively had a tendency to interfere with the administration of justice in the manner particularised…. It seems to me that a relevant question in the context of these proceedings includes a consideration of whether the conduct of the proceedings by the Court was undermined or usurped … or interfered with … by the conduct of the respondent complained of in the charge as particularized. … it is necessary to consider the conduct of the respondent in terms of what it saw was its right as an employer to deal with the applicants in the substantive proceedings as its employees. In my opinion the conduct of the respondent viewed objectively had a tendency to interfere with the administration of justice with respect to the proceedings before the Court in the sense to which I have referred by compelling the applicants in those proceedings to respond to the Reply in a manner which was not authorized by any order of the Court. Ms Jeskie and Mr Rocks were obliged to respond to the allegations contained within the Reply by means of the Response document, which had been completed prior to them being ultimately required to attend at the offices of the respondent. The demands made by the respondent and by the solicitor acting on its behalf were framed by reference to the Reply documents. Whilst one might excuse an employer from lack of precision in the way in which requirements of this kind might be framed, it was clear that the respondent had available to it legal advice and, indeed, the request made by the respondent was framed by reference to a requirement to answer the allegations contained in the Reply document, notwithstanding that this had already been effected through the Response document. Even though the demand made by the respondent might otherwise have been made within the context of the employer/employee relationship, the manner in which the demand was framed and the context in which it was perpetrated went beyond the employment relationship. The result was that there was a tendency to interfere with the conduct of the proceedings which thereby constitutes contempt covered by one of the particulars of the charge. The applications were required to respond to the Reply Document in a manner not authorized by any Court order. In doing so the proceedings being conducted by the Court were undermined and usurped and unduly interfered with. For these reasons the respondent is, in my opinion, guilty of the offence alleged in Charge G. 66. …. Once there has been a finding that Charge G is made out, it follows that the respondent should be found guilty of Charge H. The applicants in the substantive proceedings were required by the conduct of the respondent as particularized to comply with an instruction which was not authorized by any Court order or rule and was framed in a manner which was directed to an integral part of a Court process. Accordingly, this Charge is also made out.

34 Haylen J (at [4]) concurred with the reasoning of Marks J at [65]-[66]. He gave additional reasons of his own. His Honour said (at [10]): In a very real sense the applicants were faced with participating in the meeting and the investigation and thus effectively losing the opportunity to regulate that process by orders of the Commission or refusing to attend and losing their employment, which is precisely what occurred. Once they attended the meeting and participated as directed, they lost the right to conduct their litigation as they saw fit: it is not fanciful to conclude that the directions given by the employer were likely to raise in the minds of the applicants the futility of continuing with central aspects of their application in the Commission.

35 As indicated, Boland J dissented. His Honour would have dismissed all charges, including G and H. He concluded that, as a matter of practical reality, the conduct charged did not have a real and definite tendency to interfere with the course of justice. The claimant was entitled to give lawful directions, including directions requiring employees to attend a meeting. The pendency of the proceedings did not preclude this. Indeed, the meeting could have resolved the matter, thereby saving the Commission and the parties the time and expense associated with conciliation proceedings. His Honour was not satisfied that there was unreasonable pressure placed upon the applicants, who were at the time legally represented. 36 These proceedings do not require this Court to address the correctness of the majority's findings. The views of this Court as to the correctness of the particular decision are simply irrelevant if the Commission had jurisdiction in the sense of authority to embark upon the hearing of the prosecution and to resolve it conclusively. This is not to deny that some types of factual or legal error may reveal jurisdictional error (Craig v South Australia (1995) 184 CLR 163 at 179, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346). 37 In these proceedings the claimant seeks:

• an order prohibiting or restraining the Commission and its Registrar from taking any further step in the contempt proceedings;

• a declaration that the "judgment and orders" of the Commission made on 20 November 2003 were without power and/or jurisdiction; and

• an order in the nature of certiorari setting aside the "judgment and orders" of the Commission.

Further, and only if necessary for the purpose of obtaining the principal relief which it seeks, the claimant seeks a declaration that s179 of the Act is invalid because it is inconsistent with Chapter III of the Constitution . 38 The claimant's jurisdictional challenge involved two propositions. 39 First, it was submitted that the Commission's jurisdiction to punish for contempt under the Act depends on the actual or "objective" occurrence of a "jurisdictional fact" being either:

• that the person is in truth "guilty of contempt" (cf s164(2)) such that the Commission acts in excess or in want of jurisdiction if it wrongly decides that matter; or

• at least that there exists proceedings that can properly be described as "proceedings for an offence" of contempt (cf ss153(1)(a) and 180(3)) such that the Commission will have no jurisdiction if on the face of the proceedings (here defined by the Notices of Motion, as particularised) the conduct in which the person is alleged to have engaged cannot amount to a contempt of court. 40 The second proposition was that, on a proper application of the principles expressed Harkianakis v Skalkos (1997) 42 NSWLR 22 at 27-30 and Bhagat v Global Custodians Ltd [2002] NSWCA 160 at [35]-[38], the conduct with which the claimant was charged and in which it was found to have engaged would not be a contempt of the Supreme Court. The conduct charged and found therefore could not amount to a offence against s180 of the Act. 41 It may be observed that the claimant has gone beyond asserting mere errors of fact or law. The Commission's jurisdiction to make such errors and/or its immunity from review for such errors by reason of s179 was accepted. The foreshadowed constitutional challenge to s179 focussed upon the comprehensive remedial preclusiveness of s179(1)(b) and (2) and the reference to "purported" decisions in s179(3). 42 It was not suggested that the offences charged were not contempts recognised at common law and falling within s180(2). Nor was it contended that the Commission had misunderstood the law as to the issues involved in a charge of contempt of this nature, or that there was any fundamental defect in the Commission's approach to the burden and standard of proof. 43 Senior counsel for the claimant did not shrink from the proposition that his submission was tantamount to averral that the Commission had jurisdiction to make ultimate findings of guilt only if they were in truth sustainable and within the scope of s180(2). He also accepted that a "wrong" decision was not a nullity, in light of the Commission's status as a superior court of record (cf s152(1), Re Macks; Ex parte Saint (2000) 204 CLR 158, Continental Venture Capital Ltd v Amann Aviation Pty Ltd (in liq) (2001) 53 NSWLR 687) with the consequence that this Court would have to set it aside, at least if a "decision" had already been made. It was also accepted that the claimant bore the persuasive onus of establishing the jurisdictional error contended for. 44 One aspect of the claimant's submission was that the Commission lacked jurisdiction to embark on the inquiry presented by the Notices of Motion because the facts averred and particularised could not sustain findings of guilt. Alternatively, it was contended that the Commission's jurisdiction or power to "punish for contempt" (cf s164(2)) is conditioned upon the actual or "objective" reality of contempt having occurred, or at least the reality of primary facts being found to support such a conclusion. 45 Parliament may frame legislation so as to make a court or tribunal's jurisdiction depend on the actual or "objective" occurrence of some fact, event or circumstance. In that event the body will (subject to an effective privative clause) be subject to the appropriate prerogative or other remedy if it exceeds jurisdiction or clearly threatens to do so. This is the general principle to be derived from the passage relied upon by the claimant in Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 at 653. This, however does little more than bring the parties to the central issue in these proceedings. 46 The claimant submits that s164(2), with its reference to "punishment of persons guilty of contempt" (emphasis added), requires guilt to exist in fact or "objectively". It was submitted by Mr Gageler SC for the claimant that the Commission's entitlement to exercise the functions of the Supreme Court in relation to the "punishment of persons guilty of contempt of the Commission" could only be engaged, relevantly, if the person sought to be punished was "objectively guilty of contempt… as defined by s180(2)" (CA Tr p3). 47 On this approach, s164(2) was seen as conferring ancillary powers that, among other things, make s180(3) effective. So much may be accepted. But the critical provision remains s180, which establishes the offence and ostensibly confers on the Commission in Court Session jurisdiction to determine whether guilt is established. 48 The present case is so far removed from McJannet as to make that case no assistance. In McJannet, the jurisdictional facts enacted by Parliament were the requirement that the party moving for relief under s253X(1) of the Industrial Relations Act 1988 (Cth) had to be an interested person, and the existence of a "difficulty" of a particular description as the trigger for relief under s253ZC of that Act (see per Toohey, McHugh and Gummow JJ at 658-9). The nature and form of this legislation is quite different to s180. 49 DMW v CGW (1982) 151 CLR 491 was also relied upon by the claimant. On examination, it too is illustrative of general principle without throwing any real light on the crucial issue. The jurisdictional fact in that case - whether a child was "a child of the marriage" - was constitutionally mandated. 50 The Court was then taken to The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351. The Federal Court was given jurisdiction under s159 of the Conciliation and Arbitration Act 1904 (Cth) to conduct an inquiry into an "irregularity in or in connexion with an election for an office" in a registered industrial organisation. "Irregularity" was defined in s4(1) to include "any event, omission or other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons… is, or is attempted to be, prevented or hindered". Three justices of the High Court held that the Federal Court's jurisdiction depended upon a complaint alleging irregularities that were capable of answering the statutory description (see per Gibbs CJ at 371, per Wilson J at 379, per Brennan J at 381). Their Honours concluded that the Federal Court lacked power to determine conclusively the matter on which the jurisdiction under s159 depended, namely whether there was in fact an irregularity in or in connexion with an election. Mason, Deane and Dawson JJ were strongly of the contrary view. Mason J stated (at 376) that it was "nonsense" to suppose that Parliament intended that the Federal Court's jurisdiction depended on the actual occurrence of an irregularity. Pincus J followed Mason, Deane and Dawson JJ in Re Federated Engine Drivers' and Firemen's Association of Australasia; Ex parte Cambourn (1990) 96 ALR 114. 51 Again the particular case throws little light on the present issue, beyond illustrating that there will be situations where the facts alleged as the basis of an application to a court or tribunal are incapable of establishing a particular jurisdictional fact upon which the body's jurisdiction to decide finally is posited (see also The Queen v Australian Stevedoring Industry Board; Ex part Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 119-120). 52 None of the cases relied upon by the claimant involved a question of curial jurisdiction to find and punish guilt in relation to a criminal offence. 53 It is necessary to approach the matter by reference to authoritative statements of general principle as to identification of jurisdictional error. I find it sufficient to cite the High Court in Craig at 176-180 and the judgment of Spigelman CJ (with whom Meagher JA and I agreed) in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 63-67. See also Mark Aronson, "The Resurgence of Jurisdictional Facts" (2001) 21 Pub L Rev 17. The following propositions emerge:

1. The conferral of jurisdiction upon courts that are constituted by persons with formal legal qualifications is relevant, tending towards the conclusion that they are armed by Parliament with jurisdiction to decide factual and legal issues, subject to appellate rights (if any) conferred by Parliament ( Craig at 176-7). There is a strong interpretative presumption against a statute making a court's jurisdiction dependent upon a jurisdictional fact ( Timbarra at 67, citing Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391).

2. Jurisdictional error is not confined to entertaining matters or making decisions or orders of a kind lying wholly or partly outside the theoretical limits of functions or powers. It may occur if the court disregards or takes account of some matter in circumstances where the statute establishing it and confining its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the particular case. Sometimes a misconception of the nature of the relevant function may be so radical as to constitute jurisdictional error ( Craig at 177-8).

3. In contrast to administrative tribunals: …the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error ( Craig at 179-180). 4. A jurisdictional fact is an "essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has" ( Craig at 177). The question whether or not facts are jurisdictional in this sense turns on the proper construction of the statute ( Timbarra at 63-4 and cases cited).

5. According to Spigelman CJ in Timbarra (at 65): The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power.

54 The distinction between jurisdictional and non-jurisdictional error remains a fundamental part of Australian administrative law (Craig). Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 does not represent the law in Australia. But one insight stemming from Anisminic is that it is now more clearly understood than previously that "an error of law may amount to a jurisdictional error even though the [decision-maker that] made the error had jurisdiction to embark on its inquiry" (per Gibbs CJ in The Queen v Gray; Ex parte Marsh at 371. See also Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194 at 227-8 per Kirby J) Naturally, the line between jurisdictional and non-jurisdictional error is difficult to state compendiously and disagreements may be expected in particular situations, as illustrated by The Queen v Gray; Ex parte Marsh. 55 One finds categorical statements in early cases and writings in relation to judicial decisions finding guilt of an offence established. Thus DM Gordon, in an article "The Relation of Facts to Jurisdiction" (1929) 45 LQR 459 at pp461-2, said: If, therefore, an adjudication has been made by any tribunal that an assault within the statute mentioned has been committed, it is idle, so far as jurisdiction is concerned, to inquire whether the assault actually was committed; the only relevant question is, Was the tribunal that so found the tribunal whose opinion was made the test? So also where any other state of facts that constitute an offence or cause of action has been judicially found. A fortiori the questions whether the evidence before that tribunal was sufficient, or even whether there was any evidence at all, are absolutely irrelevant. To put the point in perhaps the most striking way - every tribunal with power to investigate an alleged offence is quite within its jurisdiction in finding the accused guilty, however complete his innocence. 56 In support of the second paragraph quoted the learned author cited Brittain v Kinnaird (1819) 1 Brod & B 432; R v Bolton (1841) 1 QB 66; R v Nat Bell Liquors Ltd [1922] 2 AC 128; Kemp v Neville (1861) 10 CB (NS) 523; Groenvelt v Burwell (1699) 1 Ld Raym 454 at 471; Ex p Ackland (1847) 9 LT (OS) 146. See also D M Gordon, "Jurisdictional Fact: An Answer" 91966) 82 LQR 515 at p517. 57 Similar in effect is the statement by Amnon Rubinstein, Jurisdiction and Illegality Oxford, Clarendon Press, 1965 at p213: Where, then, lies the dividing line between the jurisdictional and non-jurisdictional, the binding and the non-binding, the vitiating and the non-vitiating? One thing may be stated with relative certainty: matters which are essentially the crux of the adjudication are to be placed within jurisdiction. Such questions are: whether a person is guilty of an offence or not; whether deportation should be ordered; whether a person is entitled to a certain benefit or liable to pay a certain duty.

58 These statements and the cases on which they are based must be viewed in their context. It has always been necessary to find a legislative committal of the task to the tribunal before it could be concluded that (in Rubinstein's words) "matters which are essentially the crux of the adjudication" are placed within jurisdiction. There is however greater overt recognition in modern times of the possibility that a tribunal may duly embark on an inquiry but so radically misconceive the nature of the inquiry as to go beyond jurisdictional limits. 59 In Craig (at 177) the High Court recognised that an inferior court would, for example, act wholly outside the general area of its jurisdiction if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. The converse would also be true. Other examples could be given wholly within the context of the criminal law. Thus, a Local Court hearing charge under the Motor Traffic Regulations would err in a jurisdictional sense if it proceeded to convict for murder. 60 The present case and the type of errors contended for by the claimant are totally removed from these extreme examples. 61 Much of the basic reasoning expressed in the older criminal law cases cited by DM Gordon remains sound. This is because the learned author's premise remains the proper starting point for addressing jurisdictional challenges involving the core judicial function of determining guilt and imposing punishment. In the article cited, Gordon said (at 460): Where the Legislature provides that when a certain offence is committed or a certain state of facts exists, certain liabilities or rights shall result, it always contemplates these results flowing from a finding of the facts by a judicial tribunal, not from the existence of the facts in the absolute. When, for example, a statute says that if anyone has committed an assault he shall be fined or imprisoned, this means that if anyone in the opinion or judgment of a certain tribunal (specified expressly or by implication) has committed an assault, he shall be fined or imprisoned. Such a construction must necessarily be put upon every statute creating an offence or cause of action, because there is no means of dealing with facts in the absolute, and the Legislature knows it.

62 The adjudication and punishment of criminal guilt has been a core and exclusive judicial function for centuries, so much so that the matter assumes constitutional proportions in the context of Chapter III of the Constitution (see Eastman v Director of Public Prosecutions (ACT) & Ors [2003] HCA 28 at [80] per Heydon J). 63 The claimant submitted that the reasoning of the majority of the Full Bench was flawed. 64 It was submitted that central parts of Marks J's reasoning were the irrelevant and/or untenable propositions that the claimant's conduct was unauthorised by any Commission order or rule and was framed in a manner directed to an integral part of the Commission process. The claimant was entitled to seek a response from employees to serious allegations of misconduct. Merely because those allegations had previously been recorded in the Replies required to be filed in the Commission proceedings did not preclude all investigation outside the Commission. 65 I accept that Marks J's reasons made much of these matters without clearly enunciating why the claimant's conduct amounted to the contempts charged. Nevertheless, as the claimant acknowledges, the lawfulness of the directions to attend the meetings did not prevent them from being capable of constituting the contempts charged. Marks J set out the terms of the letters and considered them in the context of the steps being taken in the Commission. The central part of his reasoning (at [65]) was the conclusion that: … the manner in which the demand was framed and the context in which it was perpetrated went beyond the employment relationship.

The claimant submits that it was entitled to fuller reasons for this critical finding, but such a complaint does not involve a jurisdictional challenge of the nature involved in the claimant's main propositions. 66 The claimant submits that Haylen J's reasoning was flawed because it did not recognise that s106 conferred no right to an order (cf Fisher v Madden as Receiver and Manager of Dataflow Computer Services Pty Ltd (2002) 54 NSWLR 179 at 183-4 [112]). No interlocutory relief had been sought and there was, in any event, no jurisdiction in the Commission to grant such relief (cf Mitchforce Pty Ltd v Industrial Relations Commission of New South Wales & Ors (2003) 57 NSWLR 212 at 251 [202] per Handley JA). 67 It is unnecessary and inappropriate for this Court to address these complaints except so far as they touch upon the jurisdictional challenge that has been mounted. Haylen J did not hold that the claimant was frozen into inactivity by the mere pendency of the applications in the Commission. His Honour closely examined the conduct in its particular context. Applying principles governing contempt of a similar nature as regards the Supreme Court, his Honour concluded that the two charges had been established to the requisite standard. 68 The second opponent submits that the relevant jurisdictional fact required to enliven the Commission's jurisdiction to punish for contempt under s164(2) is a finding by the Full Bench of the Commission in Court Session that a person is guilty of contempt. I accept that submission. 69 The critical jurisdictional questions relate to s180 and they have to be asked with reference to the conduct of the Commission in embarking upon and deciding, at least as far as making adverse findings, the issues raised in charges G and H. 70 There is nothing in the manner of expression of s180(1) that takes it outside a commonplace statutory offence. Subsection (2) gives some definition of the offence, without casting any relevant light on the jurisdiction issue. I do not accept the claimant's submission that the words "only if" indicate a legislative intent to make satisfaction of the subsection a jurisdictional fact. Subsection (3) is also a commonplace conferral of jurisdiction in relation to proceedings for the offence. That jurisdiction is conferred upon a superior court of record that is not subject to this Court's appellate jurisdiction. 71 These matters reinforce the strong presumption in favour of jurisdiction of which Dixon J spoke in Parisienne Basket Shoes. For the reasons stated by DM Gordon in the second passage quoted above, the obvious purpose of the Legislature was to constitute the Commission in Court Session as the forum for entertaining and determining all issues relevant to guilt and punishment of the offence (see also s164(2)). If the claimant were correct, the Legislature would have contemplated the punishment of a criminal offence in circumstances not involving the solemn finality of a conclusive curial determination. 72 Nothing in the form of s180 suggests that the fact of guilt is itself jurisdictional, in the sense that it may be exposed to collateral attack by proceedings for review. 73 The evidence relied upon was in my view capable of supporting the charges. And the manner in which the Commission addressed the charges in their reasons disclosed no departure from the principles expounded in Harkianakis and Bhagat. On analysis, the claimant's complaints rise no higher than raising issues about factual inferences drawn from the uncontestable facts of the letters and the course of the Commission proceedings. 74 The Summons should be dismissed with costs. 75 HANDLEY JA: In these proceedings I have had the benefit of reading the reasons for judgment of Mason P in draft form. I agree with his reasons but will add some supplementary reasons of my own. 76 These proceedings challenge on jurisdictional grounds the validity of the majority decision of the Commission that the claimant was guilty of two charges of contempt of court. Appellate jurisdiction is always the creature of statute and since no appeal lies from the decision of the Commission this Court has no jurisdiction to review its decision on the merits. 77 As Gleeson CJ and McHugh J said in Minister for Immigration v B (2004) 78 ALJR 737, 740 "In a legal context the primary meaning of jurisdiction is 'authority to decide'" and they cited Ah Yick v Lehmert (1905) 2 CLR 593, 603 and Baxter v Commissioners of Taxation (1907) 4 CLR 1087, 1142. Authority to decide is authority to make a decision, whether right or wrong. Unless there is an appeal to a higher Co`urt there will be no judicial body with jurisdiction to review the merits of that decision. A Court with only supervisory jurisdiction can only decide whether the lower Court had jurisdiction. It has no judicial power to decide anything else. The Commission undoubtedly had jurisdiction, that is authority, to hear and determine the proceedings for contempt of court. Error in the exercise of that jurisdiction, if such there was, does not result in loss of jurisdiction. As I said in Mitchforce Pty Ltd v Industrial Relations Commission (2003) 57 NSWLR 212, 247: "Any error, assuming one were made, would be within jurisdiction. Error within jurisdiction 'is a wrong exercise of a jurisdiction [the Court] has, and not a usurpation of a jurisdiction which [it] has not' (per Lord Sumner in R v Nat Bell Liquors Ltd [1922] 2 AC 128, 151-2). The same point was made in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 374 by Latham CJ who said: 'When jurisdiction is given to decide a question, there is power to decide it, rightly or wrongly, and not only power to decide it rightly'." 78 The point was made forcefully by Isaacs J in Meyers v Casey (1913) 17 CLR 90, 115 who referred to "the well known rule that a competent court or other tribunal has jurisdiction to give a wrong judgment, and if there is no appeal in the strict sense, then its decision, whether right or wrong, must stand and cannot be questioned in any subsequent proceedings". He cited the decision of the Privy Council in Malkarjun bin Shidramappa Pasare v Narhari bin Shivappa (1900) LR 27 Ind App 216 and quoted from the advice of Lord Hobhouse in that case at 225: "… the Court was exercising its jurisdiction. It made a sad mistake it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong the wronged party can only take the course prescribed by law for setting matters right and if that course is not taken the decision, however wrong, cannot be disturbed." 79 Isaacs J continued: "Here there is no appeal in the proper sense from the committee to any Court of law. If the committee had jurisdiction to entertain the appeal, its decision cannot be disturbed." 80 The High Court dealt with this matter comprehensively and conclusively in Craig v South Australia (1995) 184 CLR 163, 179-80: "… the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error." 81 Although I have referred to these principles it should not be thought that I consider that the majority decision of the Commission was erroneous in fact or law. That is not my view and I would merely refer, like the President, to the judgment of Gibbs CJ in Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460, 467-8 for a statement of legal principle which supports the majority decision. 82 I agree with the orders proposed by Mason P. **********

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