Veta Limited v Evans

Veta Limited v Evans - [2004] NSWIRComm 336 - NSWIRComm 2004 case summary — Zoe

INTERVENOR: Attorney General of New South Wales FILE NUMBER: IRC 4423 of 2004 CORAM: Wright J President; Walton J Vice-President; Kavanagh J CATCHWORDS : Appeal - Unfair contract - Challenge in the High Court to Court Session's jurisdiction remitted by High Court pursuant to s 44 of the Judiciary Act to be heard by Court Session - Case management - Power and discretion of judge to order that original s 106 proceedings and remitted proceedings be heard together - Power of State court to hear judicial and non-judicial proceedings together - Whether r 82 of the Industrial Relations Commission Rules provides right to the applicant under that rule to have jurisdictional issue determined prior to other issues - Leave to appeal granted - Appeal dismissed. Australian Constitution s 75 Bankruptcy Act 1924-1933 (Cth) s 217 LEGISLATION CITED : Industrial Relations Act 1996 s 106 s 179 Industrial Relations Commission Rules 1996 r 76 r 82 Judiciary Act 1903 (Cth) s 39 s 44 Baker v The Queen (2004) 210 ALR 1 Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Limited & Ors (1995) 58 FCR 365 Cram, Ex parte Newcastle Wallsend Coal Co Pty Ltd, Re (1987) 163 CLR 140 Dingjan, ex parte Wagner, Re (1995) 183 CLR 323 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Euphoric Pty Limited v Ryledar Pty Limited (2002) 117 IR 1 Evans and others v Veta Ltd and Cathay Pacific Airways Ltd [2004] NSWIRComm 203 Fardon v Attorney-General for the State of Queensland (2004) 210 ALR 50 Hyde v Energy Australia (1999) 92 IR 409 Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51 CASES CITED : Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Metrocall Inc v Electronic Tracking Systems Pty Limited (No 2) (2000) 102 IR 309 Mullins v Peoplebank Australia Pty Limited [2003] NSWIRComm 457 Nagle (T/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8 National Australia Bank Ltd v Cassino [2002] NSWIRComm 241 R v Kirby, ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 R v The Federal Court of Bankruptcy, Ex parte Lowenstein (1938) 59 CLR 556 Taudevin v Egis Consulting Australia Pty Limited (2000) 97 IR 165 Taudevin v Egis Consulting Australia Pty Limited (No 1) (2001) 131 IR 124, [2001] NSWIRComm 340 Taudevin v Egis Consulting Australia Pty Limited (No 2) (2002) 131 IR 178 Verso Technologies Inc v Rasmussen [2004] NSWIRComm 90 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 HEARING DATES: 10/18/2004 DATE OF JUDGMENT: 12/15/2004

[17]

· Question A asks whether, by reason of the Air Navigation Act 1920 and schedules of the Commonwealth and the regulations thereunder and the Civil Aviation Act 1988 and regulations of the Commonwealth, the provisions of section 106 of the Industrial Relations Act (NSW) are invalid and inoperative under section 109 of the Constitution insofar as section 106 purports to permit the variation or avoidance of contracts, whereby a person performs work in the international air transportation industry. · Question B asks whether section 106 of the Industrial Relations Act, insofar as it relates to or purports to relate to the variation of the avoidance of contracts, whereby a person performs work in the international air transportation industry, is wholly invalid and inoperative under section 109 of the Constitution by reason of inconsistency with the laws of the Commonwealth contained in the Air Navigation Act and the schedules and regulations thereunder and the Civil Aviation Act and the regulations thereunder and the Workplace Relations Act 1996 (Cth) and the schedules thereto. · Question C asks whether the international air transportation industry or any part thereof in which any of the defendants perform work in the services of Veta was an industry in and of New South Wales. · Question D asks whether any of the contracts between Veta and each of the defendants under which the defendants performed work in the services of Veta is a contract in respect of which the Industrial Relations Commission has jurisdiction under section 106 of the Act. · Question E asks whether section 106, insofar as it purports to confer jurisdiction on the Industrial Relations Commission of New South Wales to vary or avoid each of the contracts entered into between each of the defendants and Veta, is invalid and inoperative as not being a law for the peace, order and good government of New South Wales. · Question F asks whether, by reason of an affirmative answer to any one or more of the questions posited about the Industrial Relations Commission, it lacks jurisdiction to entertain the claims referred to in paragraph 44 of the statement of facts in the draft case. · Question G asks whether any or all of the questions posited at D to E are matters reserved to the Industrial Relations Commission of New South Wales in Court Session by reason of section 179 of the Industrial Relations Act.

[44]

26 The appellants also submitted that: (a) pursuant to the principle in Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Limited & Ors (1995) 58 FCR 365 (per Lindgren J), the facility to challenge jurisdiction without entering an appearance, as with rules in relation to the entry of a conditional appearance in other jurisdictions: ... make[s] it clear that the focus of concern is the invoking by an applicant of the Court's coercive power to grant the relief sought in the application. The question raised is whether a respondent should be subjected to that power by nothing more than the filing and service of an application. (b) pursuant to r 82, there is a right to have the question of jurisdiction determined before the hearing of substantive issues. This right is rendered nugatory if, as Staunton J contemplated, the hearing of the motions could be adjourned to final hearing and the appellants are directed to file an appearance, thereby submitting to jurisdiction. (c) further, in the absence of an appearance being filed, under r 76 a respondent was not entitled to file a defence without being granted leave to do so. Consequently, her Honour's decision required the appellants either to submit to jurisdiction in circumstances where they have actively sought to challenge that jurisdiction in accordance with the Court's rules, or face a default judgment. Ultimately, her Honour had determined the appellants' objection to jurisdiction without hearing it. (d) as to the nature of proceedings under s 106 generally, the appellants submitted that such proceedings have been characterised as non-judicial in the sense that they are about the creation of rights rather than the determination of existing rights: Mullins v Peoplebank Australia Pty Limited [2003] NSWIRComm 457. Further, the fact that in the course of reaching an arbitral determination the Court must form opinions on matters of law does not convert the proceedings to judicial proceedings: Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149. In any event, the question of whether the proceedings are judicial or arbitral is open to debate: Taudevin v Egis Consulting Australia Pty Limited (No 1) . (e) the Court was bound by the decision of the High Court in Re Dingjan; ex parte Wagner (1995) 183 CLR 323 where it was held that the power conferred on the Court Session pursuant to s 106 was non-judicial. The appellants referred to the consideration that because a tribunal possesses certain procedural powers enjoyed by courts, is authorised to determine questions of law arising before it, and is constituted by a judge, does not necessarily mean that the tribunal is exercising judicial power: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 414. (f) insofar as a tribunal is a federal tribunal, it is clear that it cannot exercise judicial power unless it is established under the Constitution and its jurisdiction respects the separation of powers which is constitutionally guaranteed: R v Kirby; ex parte Boilermakers' Society of Australia (1956) 94 CLR 254. Of course, that is not to say that in a system of State jurisprudence, a Court might not have allocated to it non-judicial functions. (g) nevertheless, the question of whether a court in which federal jurisdiction is reposed may continue to exercise non-judicial power simultaneously has not been previously considered, notwithstanding the conclusions of the Full Bench in Taudevin v Egis Consulting Australia Pty Limited (No 1) . (h) a State court which is entrusted with federal judicial power cannot have reposed in it any power or function antithetical to the exercise of federal judicial power: Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51. (i) while the State legislature, unrestricted by the doctrine of the separation of powers, may confer non-judicial powers on a court and need not have recourse to the principles of persona designata (even if the court exercises federal jurisdiction, provided the exercise of the non-judicial power is not incompatible with the exercise of federal judicial power), it nonetheless remains the case that the exercise of non-judicial power must be detached from the exercise of federal judicial power.

[62]

[98] The implications limiting the powers of State parliaments in relation to State courts identified by McHugh J do not extend as far as the Commonwealth claims in this case. His Honour said at 118 - 119: A State may invest a State court with non-judicial functions and its judges with duties that, in the federal sphere, would be incompatible with the holding of judicial office. But under the Constitution the boundary of State legislative power is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the State court as an institution was not free of government influence in administering the judicial functions invested in the court. [99] Brennan CJ was also in the minority in Kable . Nevertheless, his Honour's rejection of the majority view as set out in these words (at 67) serves to show the limits of the issue and thus of the holding in that case: The submission that a State court cannot be a repository of both State non-judicial power and federal judicial power if the exercise of the former would be incompatible with the exercise of the latter attributes to Ch III a novel operation. On one approach Ch III would limit the power of the Parliament of a State to invest the courts of the State with incompatible non-judicial powers. [100] The Commonwealth submission is not put in terms of the invalidity of State (or federal) law, but in terms of the restriction imposed by Chapter III on the State court because, it is said, when exercising federal jurisdiction State courts are bound by the requirements of Chapter III of the Constitution . [101] Indeed, Professor Enid Campbell recently observed, in reflecting on the implications of Kable for State courts and the powers of State legislatures as to these courts ("Constitutional Protection of State Courts and Judges" (1997) 23 Monash Law Review 397 at 417): After all, in some cases State courts will be exercising federal and State jurisdiction concurrently. And from a practical point of view it would be highly inconvenient if State courts were required to observe certain minimal procedural requirements in federal cases but not in State cases.

[66]

But when the legislature confers on the courts, as inseparable functions, the duties of prosecutor and judge, the question at once arises whether this is not outside the conception of judicial power. The question is not one of the wisdom, propriety or justice of the course laid down by the provision. It is entirely a question of the nature of the legislative power. If the provision is in conformity with the power its validity cannot be impugned on any such ground. But if the inherent character of the function reposed in the courts is at variance with the conception of judicial power, then, in our opinion, it must fail even if the mode of proceeding has been found so convenient, speedy and satisfactory as to overcome the traditional objection expressed in the maxim nemo potest esse simul actor et judex . But, in our opinion, the authority given to the courts by sec. 217 (1) (a), (2) and (3) does not fall within the conception of judicial power. The maxim quoted does not express a mere caution against human frailty. It epitomizes part of the English notion of the judicial function. A long course of development produced a conception of the judicial process which placed the court in the position of a detached tribunal entertaining and determining civil and criminal pleas brought before it. It is true that in relation to contempt of court the courts of justice are armed with powers of summary punishment, at all events for contempts in facie curiae exercisable ex mero motu . But this has always been regarded as an exceptional power based on the necessity of keeping order and of preserving the court from actual interference in the discharge of its duties. The discussion of the power has proceeded since R. v. Almon [(1765) Wilm. 243; 97 E.R. 94] upon a basis which may well be thought to illustrate the use of an exception to prove the existence and strength of a rule. The judicial power does not include the promotion, prosecution and proof of criminal charges by a court for its own determination.

[73]

44 For example, McHugh J in Fardon observed that in Kable it had been held that there is nothing to prevent State Parliament from conferring powers on State courts which are wholly non-judicial "so long as they are not repugnant to or inconsistent with the exercise by those courts of the judicial power of the Commonwealth" (see Fardon at [40]). His Honour also said: [41] The bare fact that particular State legislation invests a State court with powers that are or jurisdiction that is repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects that court's capacity to exercise federal jurisdiction impartially and according to federal law. State legislation may alter the burden of proof and the rules of evidence and procedure in civil and criminal courts in ways that are repugnant to the traditional judicial process without compromising the institutional integrity of the courts that must administer that legislation. State legislation may require State courts to exercise powers and take away substantive rights on grounds that judges think are foolish, unwise or even patently unjust. Nevertheless, it does not follow that, because State legislation requires State courts to make orders that could not be countenanced in a society with a Bill of Rights, the institutional integrity of those courts is compromised. [42] The pejorative phrase - "repugnant to the judicial process" - is not the constitutional criterion. In this area of constitutional discourse, it is best avoided, for it invites error. That which judges regard as repugnant to the judicial process may be no more than a reflection of their personal dislike of legislation that they think unjustifiably affects long recognised rights, freedoms and judicial procedures. State legislation that requires State courts to act in ways inconsistent with the traditional judicial process will be invalid only when it leads to the conclusion that reasonable persons might think that the legislation compromises the capacity of State courts to administer invested federal jurisdiction impartially according to federal law. That conclusion is likely to be reached only when other provisions of the legislation or the surrounding circumstances as well as the departure from the traditional judicial process indicate that the State court might not be an impartial tribunal that is independent of the legislative and the executive arms of government.

[75]

[44] In this case, it is impossible to conclude that the Queensland Parliament or the executive government of that State might be working in conjunction with the Supreme Court to continue the imprisonment of the appellant. Nor is it possible to conclude that the Act gives rise to a perception that the Supreme Court of Queensland might not render invested federal jurisdiction impartially in accordance with federal law. The Act is not directed to a particular person but to a class of persons that the Parliament might reasonably think is a danger to the community. [See, eg, Queensland, Dangerous Prisoners (Sexual Offenders) Bill 2003 (Q) Explanatory Notes, (2003) at 1; Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 3 June 2003 at 2484 per Welford; Queensland, Dangerous Prisoners (Sexual Offenders) Bill 2003 (Q), Amendments in Committee, Explanatory Notes, (2003) at 1]. Far from the Act giving rise to a perception that the Supreme Court of Queensland is acting in conjunction with the Queensland Parliament or the executive government, it shows the opposite. It requires the Court to adjudicate on the claim by the Executive that a prisoner is "a serious danger to the community" in accordance with the rules of evidence and "to a high degree of probability". Even if the Court is satisfied that there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody, the Court is not required to order the prisoner's continued detention or supervised release. Furthermore, the Court must give detailed reasons for its order [Section 17], reasons that are inevitably subject to public scrutiny. It is impossible to hold, therefore, that the Queensland Parliament and the executive government intend that the appellant's imprisonment should continue and that they have simply used the Act "to cloak their work in the neutral colors of judicial action." Mistretta v United States 488 US 361 at 407 (1989). On the contrary, the irresistible conclusion is that the Queensland Parliament has invested the Supreme Court of Queensland with this jurisdiction because that Court, rather than the Parliament, the executive government or a tribunal such as a Parole Board or a panel of psychiatrists, is the institution best fitted to exercise the jurisdiction.

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