Western Sydney Area Health Service v Gibson

Industrial Relations Commission (NSW)|2001-07-01|Before: Wright J, Walton J, Hungerford J, The Hon J, Boland J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290 APPELLANT: Western Sydney Area Health Service PARTIES : RESPONDENT: James Gibson FILE NUMBER: IRC 4302 of 2001 CORAM: Wright J President; Walton J Vice-President; Hungerford J Unfair contract - Interlocutory proceedings - Notice of motion raising jurisdictional issues and seeking declaration pursuant to s 154 of the Industrial Relations Act 1996 - Judge at first instance upheld applicant's arguments that Notice of Motion out of time and extension of time should be refused - Appeal from decision at first instance - Principles as to appeals from discretionary decisions - Principles as to interlocutory strike-out applications in s 106 proceedings - Approach to be adopted as to procedural issues - Declaratory relief - Utility of declaratory relief - Held, that discretion at first instance miscarried - Leave to appeal granted - Appeal upheld - Proceedings remitted to be dealt with in accordance with Full Bench's judgment CATCHWORDS : Appeal - Leave to appeal - Unfair contract - Interlocutory proceedings - Notice of motion raising jurisdictional issues and seeking declaration pursuant to s 154 of the Industrial Relations Act 1996 - Judge at first instance upheld applicant's arguments that Notice of Motion out of time and extension of time should be refused - Principles as to appeals from discretionary decisions - Principles as to interlocutory strike-out applications in s 106 proceedings - Approach to be adopted as to procedural issues - Declaratory relief - Utility of declaratory relief - Held, that discretion at first instance miscarried - Leave to appeal granted - Appeal upheld - Proceedings remitted to be dealt with in accordance with Full Bench's judgment Health Services Act 1997 ss 105 106 LEGISLATION CITED : Industrial Relations Act 1996 ss 106 154 191 Industrial Relations Commission Rules 1996 rr 82 88 134 Suitors' Fund Act 1951 "A" v Commission for Children and Young People [2001] NSWIRComm 194 Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 Fernance v Wreckair Pty Ltd (1991) 22 NSWLR 439 Ford v SAS Trustee Corporation (2000) 98 IR 444 Harding v Bourke (2000) 48 NSWLR 598 CASES CITED : Hyde v Energy Australia (1999) 92 IR 409 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Nagle (t/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8 Production Panel Beating & Spray Painting Pty Ltd v Newnham (1990) 33 IR 311 State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (No. 2) (2000) 101 IR 92 HEARING DATES: 10/30/2001 EXTEMPORE JUDGMENT DATE : 10/30/2001

APPELLANT: The Hon J W Shaw QC and Mr A B Gotting of counsel Blake Dawson Waldron, Lawyers (Ms Jan Dransfield/Ms Jenny Mansfield) LEGAL REPRESENTATIVES: RESPONDENT: Mr A R Moses of counsel Tress Cocks & Maddox, Solicitors (Mr Tim Unsworth/Ms Kate Brady)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J

WESTERN SYDNEY AREA HEALTH SERVICE v JAMES GIBSON Application for leave to appeal and appeal against a decision of Justice Boland given on 6 June 2001 in Matter No IRC 6498 of 1999.

JUDGMENT OF THE COURT (Extempore) [2001] NSWIRComm 290 1 This is an application for leave to appeal and, subject to leave being granted, an appeal by Western Sydney Area Health Service against the interlocutory judgment of Boland J given on 6 June 2001. 2 As the appellant has argued the application for leave and the appeal today it has submitted that the following questions (extracted from its notice of appeal) are raised: . . .

(3) Should his Honour have declared (a) pursuant to section 154 of the Industrial Relations Act , and/or

(b) Rule 82(1)(g) of the Industrial Relations Commission Rules (the "Rules")

that, upon the proper construction of the Relevant Legislation, the Commission has no jurisdiction to hear and determine any of the Excluded Claims? (4) Should his Honour have made an order pursuant to Rule 82(1)(a) of the Rules setting the respondent's summons aside to the extent that it includes the Excluded Claims? (5) Further to Questions 3 and 4: (a) Is the appellant's application for a declaration pursuant to section 154 of the Industrial Relations Act subject to the time limit prescribed by Rule 82(2)(c) of the Rules (the "Time Limit"), particularly where it is accompanied by an application pursuant to Rule 89(5) of the Rules for an early separate hearing (see Division 1 of Part 31 of the Supreme Court Rules 1970)?

(b) To the extent that any of the appellant's applications were subject to the Time Limit, should his Honour have taken into account as a relevant consideration in deciding whether to extend the time the practical utility of an early determination of the jurisdictional question raised by the applications, given that (i) the answer does not depend in any degree upon any controversial fact,

(ii) the answer depends entirely upon the construction of the Relevant Legislation in the context of the relief sought in the respondent's summons, and

(iii) an early answer to the question may save the Commission and the parties considerable time, cost and inconvenience? 3 The grounds of the appeal which are thus said to be raised are as follows: (1) His Honour failed to determine the Appellant's First Motion.

(5) His Honour should not have found that the appellant's application for a declaration pursuant to section 154 of the Industrial Relations Act was subject to the time limit prescribed by Rule 82(2)(c) of the Rules.

(6) His Honour's decision not to extend the Time Limit (to the extent that it was necessary for his Honour to do so) was (a) wrong; and (b) vitiated by his Honour's failure to take into account the relevant considerations set out in Question 5 above. 4 The proceedings before his Honour involved an application for relief which, although interlocutory in nature, would have, if successful, led to the dismissal of the proceedings. The relief sought by the appellant, the respondent at first instance, was contained in its notice of motion filed on 13 July 2000 in the following terms: 1. An order under Rule 89(5) of the Industrial Relations Commission Rules 1996 and Part 31 of the Supreme Court Rules 1970 that this application be decided separately from any other question in these proceedings before any trial in the proceedings. 2. A declaration under section 154 of the Industrial Relations Act 1996 and Rule 82(1)(g) of the Industrial Relations Commission Rules 1996 that, upon the proper construction of Part 4 of Chapter 8 of the Health Services Act 1997 and section 106 of the Industrial Relations Act , the Commission has no jurisdiction to hear and determine any of the claims that the applicant has made in these proceedings. 3. An order under Rule 82(1)(a) of the Industrial Relations Commission Rules setting aside the applicant's amended summons in these proceedings. 4. An order under section 181 of the Industrial Relations Act that the applicant pay the respondent's costs of and incidental to this application and the proceedings. 5 The ground on which the orders were sought was set out in the affidavit which accompanied the motion in these terms: The respondent contends that the provisions of Part 4 of Chapter 8 of the Health Services Act exclude any jurisdiction that the Commission would otherwise have under section 106 of the Industrial Relations Act 1996 to hear and determine any of the claims that the applicant has made in these proceedings.

Reference was also made in that affidavit to the lodging and then the withdrawal by the respondent of an appeal pursuant to the provisions of Part 4 of Chapter 8 of the Health Services Act 1997. 6 The amended summons filed by the respondent on 9 July 2000 pursuant to s 106 of the Industrial Relations Act 1996 indicates that he had been appointed as a visiting medical practitioner in Gynaecology at Westmead Hospital, a hospital operated by the appellant, and that the appellant on 18 August 1999 had given notice to the respondent that it did not intend to renew his appointment as a visiting medical practitioner at the hospital. 7 The amended summons also refers to a number of circumstances intended to show that the respondent was denied procedural fairness in the filling of his position by another medical practitioner and a similar situation in respect of the respondent's request to be considered for alternative positions in his field. 8 As the orders sought in the motion at first instance related specifically to the existence of provisions of the Health Services Act 1997 it is convenient to refer to the relevant parts of the statute here. Part 4 of chapter 8 is entitled "Appeals concerning appointment decisions". The kinds of decisions dealt with in Part 4 are set out in s 105 which provides: 105 Public health organisation to notify visiting practitioners of certain decisions (1) If a public health organisation: (a) reduces any clinical privileges of a person appointed as a visiting practitioner that have previously been granted, or (b) does not re-appoint a person as a visiting practitioner, or (c) suspends or terminates the appointment of a person as a visiting practitioner, it must give notice in writing to the person of its decision (and the reasons for the decision) within 14 days of the date of the making of the decision. (2) In this Part, clinical privileges means the kind of clinical work (subject to any restrictions) that the public health organisation determines the visiting practitioner is to be allowed to perform at any of its hospitals.

Section 106(1) provides that a person who is dissatisfied with a decision of a public health organisation referred to in that provision may appeal to the Minister against it. Section 106(2) provides limitations as to such appeals but none of the limitations appears applicable here. 9 The relief under s 106 of the Industrial Relations Act sought in the amended summons included orders that "the contract(s) and/or the arrangement(s) whereby the [respondent] performed work at the hospital" be varied to include terms: (a) relating to the way in which the appellant was to act when determining whether to offer the respondent a further appointment; (b) requiring the appellant to ensure that the respondent was given a hearing or right to be heard at that time; and (c) that the appellant would act fairly in making the relevant determination.

Consequent orders were sought for payments to be made to the respondent pursuant to s 106(5) of the Industrial Relations Act and also as to interest and costs. 10 At the hearing of the motion the respondent filed detailed submissions dealing with the question whether jurisdiction should be dealt with as a preliminary issue and the jurisdictional issue raised by the appellant. However, the initial point raised by the respondent was: The Industrial Commission Rules contemplate that where there is a challenge as to jurisdiction, a Respondent must, within the time for filing an appearance (ie: 7 days (Part 12 Rule 79(1))), file a Notice of Motion challenging jurisdiction (see Part 12 Rule 82(2)(c)). The Respondent in this case, did not file such a Motion within time. Contrary to the Respondent's submissions, rule 82(2) (c) is applicable and the Respondent requires leave to file the Motion out of time. There is no reason for the delay in bringing the Motion. Accordingly, leave to extend time should be refused. 11 His Honour described this submission in paragraph [10] of his judgment in this way: [10] Mr Moses submitted that the question of the Court's jurisdiction to deal with the applicant's case should not be dealt with as a threshold issue. However, there is an issue to be addressed that makes it unnecessary to deal with the threshold jurisdictional issue.

and continued: [11] The respondent's substantive notice of motion seeks a number of orders, one of which is an order under r 82(1)(a) to set aside the summons. If the Court were inclined to grant this order it would be necessary to first grant an extension of time, because the notice of motion was filed out of time. I will come to the application for extension of time shortly. Another order sought is a declaration under s 154 of the Act and r 82(1)(g) of the Commission's Rules. How am I to regard this part of the application? The question arises because of the respondent's submission that its notice of motion is an application under s 154 and no mention is made of r 82(1)(g). Is it an application for a declaration under s 154 simpliciter as the respondent appears to contend or, alternatively, an application under s 154 but subject to the limitations imposed by the terms of r 82(1)(g)? If it is the latter, then in order to succeed the respondent requires an extension of time. If it is the former, then the respondent needs to establish the grounds for making a "binding declaration of right in relation to a matter in which the Commission (however constituted) has jurisdiction" pursuant to s 154 of the Act. [12] Section 154 of the Act provides: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. ...

[14] It seems to me that I should regard the respondent's application for a declaration as an application for a declaration under s 154 limited by r 82(1)(g) of the Commission's Rules, that is subject to the time limit imposed by r 82(2)(c). There are a number of reasons for coming to this view. [15] Firstly, to regard the application as having been made under s 154 without the limitations imposed by r 82(1)(g) would mean that I would have to disregard the words "and r 82(1)(g)" in the application. However, no amendment of the notice of motion was sought to remove these words so, presumably, I should give effect to them. One way of doing so would be to interpret the application as seeking two declarations, one under s 154 and another under r 82(1)(g). This, however, would not make sense because if I were to view the application in this way the terms of the order sought under s 154 and r 82(1)(g) are the same yet the application under r 82(1)(g) is not said to be in the alternative to s 154. In other words, on this construction of the application the Court is being asked to make an order under s 154 and to make the same order under r 82(1)(g). [16] I note that in his submissions Mr Neil referred to his application for a declaration under s 154 and no mention was made of r 82(1)(g). Indeed, Mr Neil contended that no time limit applied to a notice of motion seeking a declaration, thereby inferring that the respondent's application was under s 154 and not limited by r 82(1)(g). If I were to regard the application this way it raises the question as to what is sought by way of a declaration under s 154. In this respect, the declaration sought in the respondent's notice of motion is that the Court "has no jurisdiction to hear and determine any of the claims that the applicant has made in the proceedings." It would seem, however, from the submissions made by the respondent, that what was intended by the wording of the respondent's proposed order was that in exercising its general power under the later Industrial Relations Act , the Commission in Court Session may not make any of the orders sought by the applicant in his amended summons so as to make provision contrary to or otherwise to derogate from any right vested in the respondent by the earlier and more specific Health Services Act . It might be contended that the Court should proceed to deal with the respondent's notice of motion on this basis and I have given serious consideration to doing so. [17] However, I am concerned about the apparent inconsistency between the form of the declaration sought in the respondent's notice of motion and what the respondent actually seeks. In this respect, s 154 gives the Court power to "make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction". The relevant "matter" would appear to be the summons for relief under s 106 of the Act: see Ford v SAS Trustee Corporation (2000) 98 IR 443; [2000] NSWIRComm 92. On its face, the way in which the proposed order is worded immediately raises the question of how the Court could make a declaration of right in relation to "a matter in which the Commission has jurisdiction" if it is contended that the Commission in Court Session does not have jurisdiction to hear and determine the applicant's claims? I do not see that it is open to the Court, pursuant to s 154, to make a declaration in relation to a matter (ie., the applicant's claims under s 106 of the Act) that is said to be outside the Court's jurisdiction. Section 154 is about declaring the rights of parties in relation to a matter within the Court's jurisdiction. It is not about declaring, in isolation from any consideration of a "right", whether or not the Commission has jurisdiction to deal with a matter. [18] Furthermore, the making of a declaratory order has important implications. It operates in law as a res judicata or an issue estoppel and such an order is a final order for the purposes of appeal: Declaratory Orders , PW Young, Butterworths, 1984 at par 213. I would be most reluctant to amend the application to reflect what I consider might have been the respondent's intention in seeking the orders. [19] Given my concern about what I perceive to be an inconsistency between the form of the declaration sought and what I understand to be the actual relief sought as well as the uncertainty created by the reference in the notice of motion to both s 154 and r 82(1)(g), it leads me to the view that I should not proceed to deal with the notice of motion in the manner sought by the respondent and without regard to the constraints imposed by r 82(1)(g), namely, that the application must be made within the prescribed time. [20] The other consideration in declining to treat the respondent's application as an application for a declaration unconstrained by r 82(1)(g) is that ultimately there is no prejudice to the respondent. What I understand the respondent to be contending is that in light of the provisions of the Health Services Act it is not open to this Court to entertain the applicant's claims under s 106 of the Industrial Relations Act . Even if the respondent's application for an extension of time fails in relation to that part of its application that relies on r 82, it remains open to the respondent to pursue its contention in the substantive proceedings. At some point it will need to be determined whether it is open to the Court to entertain the applicant's claims or it is not. [21] Given the uncertainty generated by the wording of the notice of motion and the proposed form of the declaration sought, I propose to treat the application as being subject to the requirements of r 82 (2)(c). [22] I turn to consider the application by the respondent for an extension of time in respect of the filing of the notice of motion. [23] Rule 82 of the Industrial Relations Commission Rules 1996 provides that: 82. Setting aside originating process etc. (1) A tribunal may, on notice of motion filed by a respondent in accordance with subrule (2), by order: (a) set aside the originating process; or ... (g) declare that the tribunal has no jurisdiction over the respondent in respect of the subject matter of the proceedings; or … (i) grant such other relief as it thinks appropriate. (2) Notice of motion under subrule (1): (a) may be filed without entering an appearance; (b) must bear a note "The respondent's address for service is" and state the address; (c) must be filed within the time limited for entering an appearance. (3) The making of an application under subrule (1) is not to be treated as a voluntary submission to jurisdiction. [24] Rule 79 provides: 79. Time for an appearance (1) A respondent must enter an appearance before filing any document and within 7 days of service of any originating process on that respondent. (2) Notwithstanding subrule (1), where a matter is commenced by way of notice of motion a respondent must enter an appearance before the date appointed for any hearing or mention and before filing any document, except with leave of the tribunal. [25] Clearly, the application in the notice of motion filed on 13 July 2000 to set aside the applicant's amended summons was beyond the prescribed time for filing. A notice of motion filed by the applicant seeking leave to amend the summons and an amended summons were filed on 23 May 2000 and received by the respondent's solicitor on 2 June 2000. On 9 June 2000 the respondent informed Peterson J that the application to amend was not opposed, although the respondent indicated that it did not accept that the Commission could or should grant the relief sought in the amended summons. [26] In proceedings before Peterson J on 29 June 2000 the respondent informed his Honour that it intended to file a notice of motion seeking a stay of the proceedings pending determination of the applicant's appeal under the Health Services Act . The solicitor for the applicant sought an adjournment of the proceedings to clarify the status of her client's appeal. Peterson J adjourned the proceedings until 13 July 2000. On 30 June the respondent's solicitor was advised that the applicant intended to withdraw his appeal under the Health Services Act . [27] In proceedings before Peterson J on 13 July the respondent was given leave to file its notice of motion and affidavit in support. On 20 July 2000 the respondent's solicitor received a facsimile message from the applicant's solicitor indicating that while leave to file the respondent's motion had not been opposed, the respondent had not sought an extension of the time required for filing such a motion under r 82(2) of the Commission's Rules. On 8 August 2000 the respondent filed a further notice of motion seeking an extension of time for filing the substantive notice of motion. [28] No explanation was provided to the Court as to why no action was taken by the respondent's solicitor between 2 June 2000, when she received the amended summons and the notice of motion seeking leave to amend, and 30 June 2000 when she became aware of the fact that the applicant intended to withdraw his appeal, to set aside the amended summons. There was no indication in the letter to Peterson J on 9 June 2000 of any proposed course of action by the respondent other than no opposition to the proposed amendments to the summons. It may have been that up to 30 June 2000 the respondent's solicitor was under the impression that the appeal by the applicant under the Health Services Act was still on foot and that the intention was to seek a stay of proceedings under s 106 of the Act pending the outcome of that appeal. But this does not provide an explanation as to why no application to set aside was not filed with the prescribed time. [29] In the absence of a complete and satisfactory explanation, I am not prepared to grant the extension of time in respect of the respondent's notice of motion to set aside the applicant's amended summons or to make a declaration pursuant to r 82(1)(g). Extensions of time are not there for the asking; they are not automatic: see Taudevin v Egis Consulting Australia Pty Limited and anor [2000] NSWIRComm 63. In any event, as I have already commented, in refusing to extend time the respondent suffers no injustice because if, as it contends, there is no jurisdiction to deal with the amended summons, then, prima facie , it would be open to the respondent to put that submission in the substantive proceedings. 12 The principles relevant to the issues raised by the present appeal are usefully restated in the recent judgment of the Court of Appeal in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]. In the judgment of Heydon JA, in which Sheller JA and Studdert AJA concurred, his Honour said: The Approach of An Appellate Court

45 It is necessary to bear in mind some submissions of the defendants to the effect that a discretionary judgment can only be overturned in limited circumstances. These submissions were trite, but they are true, and they are vitally important.

[the Judge at first instance] had to make a discretionary decision on a matter of practice and procedure - an extremely important one, having potentially serious consequences for the plaintiff, but a discretionary decision on a matter of practice and procedure nonetheless. Any attack on decisions of that character must fail unless it can be demonstrated that the decision-maker: (a) made an error of legal principle,

(d) failed to take into account, or gave insufficient weight to, some relevant matter, or

(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. Even though this Court might conclude that it would have exercised the discretion differently if the discretion had been conferred on it in the first instance … any such conclusion would be immaterial. The law committed the exercise of the discretion to [the Judge at first instance]. The law permits interference with his exercise of the discretion in only the limited circumstances just described. See House v R (1936) 55 CLR 499 at 504-505; Lovell v Lovell (1950) 81 CLR 513 at 518-519 and 532-533; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627. These principles are applied to a wide range of discretionary judgments … 13 We consider that the application of that approach, which must in this jurisdiction be observed not only because of the common law requirements as stated by Heydon JA but also because of s 191(3) of the Industrial Relations Act, demonstrates that his Honour's discretion in the present case miscarried. See, for example, the criteria identified as (a), (c) and (d) in the Court of Appeal's judgment in Micallef. 14 The substantive question raised by the motion at first instance was whether the Court had jurisdiction or power to grant the relief under s 106 sought by the respondent. Boland J, however, held it was unnecessary to deal with that question and proceeded to consider the way in which the threshold question was raised in terms of the notice of motion as to its ability to act as an appropriate vehicle for the question to be determined. In other words, his Honour embarked upon a procedural exercise and thereby did not determine the real question raised by the respondent. We think that was erroneous.

15 The approach then taken by his Honour was driven by the use, upon the issue being raised by the respondent, of r 82(1)(g) and its operation in fixing time limitations for the competency of a notice of motion, such as that relied upon by the appellant. The effect of this approach was to deny to the appellant a consideration of the jurisdictional issue raised by it because of the operation of the rules and apparently without examination of whether it was appropriate to hear that jurisdictional issue as a preliminary matter.

16 We consider that approach was erroneous for two reasons. Firstly, the rules provide for a less strict limitation by the provisions of rr 88 and 134, which respectively concern waiver of compliance with procedural requirements and extension and abridgment of time. Secondly, the rules should not act so as to frustrate or otherwise limit the requirements of justice: see Harding v Bourke (2000) 48 NSWLR 598 at 603 (per Mason P, with whom Meagher and Heydon JJA agreed).

17 We also note his Honour formed the view the jurisdictional issue raised by the appellant was not justiciable under s 154. We consider that that conclusion may well be wrong. In any event, attention to the strictures which may exist in granting relief under s 154 in the determination of jurisdiction would be to unnecessarily fetter the ordinary jurisdiction of the Court in exercising its incidental power under s 106 to determine whether there is or is not jurisdiction to grant the relief sought.

18 The determination of the existence of jurisdiction is an essential duty to be performed by the Court: WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (No. 2) (2000) 101 IR 92 at 94 - 95 in cases where that is appropriate, albeit the timing of such a determination will vary according to the circumstances of the case: Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 at 447. 19 The proceedings also require the consideration again of the issue of the raising of, or attempts to raise, preliminary jurisdictional points, or points said to be jurisdictional in s 106 proceedings. The way in which such matters should be dealt with was appropriately and authoritatively dealt with in Nagle (t/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8 at 10 - 12. We describe the judgment as "appropriately" dealing with the matter as experience had shown that up to that time there were many occasions when so-called jurisdictional issues were inappropriately raised in proceedings under s 106 and the statutory predecessors to that provision, and the judgment provided a timely corrective to that situation. 20 The principles relevant were of course well known and settled prior to the judgment in Nagle v Tilburg . However, they were usefully collected, as we have observed, in an authoritative way in that judgment. Subsequently, Wright J, President considered the relevant principles in Virtue v New South Wales Department of Education and Training at 447 - 448 and said: As is acknowledged by the respondent in its submissions in relation to the motion, the relevant principles in relation to the striking out of a summons filed under s 106 on an interlocutory basis where it is alleged that the Commission lacks jurisdiction are comprehensively set out in the judgment of the Full Industrial Court in Nagle (T/as W D and J L Nagle & Sons) v Tilburg (1993) 51 IR 8 at 10-12 and in the authorities relied upon in that judgment ( Stevenson v. Barham (1970) 136 CLR 190; Majik Markets Pty Limited v Brake and Service Centre Drummoyne Pty Limited (1991) 28 NSWLR 443; General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125). Those principles may be summarised as follows: (1) The discretion of a court to determine a case at an early stage, when appropriate, has been repeatedly accepted. (2) As a general rule it is desirable that an objection to jurisdiction be determined as early as circumstances will conveniently admit so that the tribunal does not embark on a hearing which it lacks authority to conduct. The course of a court entertaining a challenge to jurisdiction in a preliminary or threshold way is often a sensible one where a party has a substantial threshold argument which, if it succeeds, will knock out the claim and save the costs and inconvenience that attend a protracted hearing of proceedings on the merits. (3) However, a further general proposition is that all issues arising should be dealt with in the substantive proceedings unless the basis for a challenge, either on jurisdictional grounds, or for lack of a reasonable cause of action, be clearly demonstrated. (4) Threshold relief of the kind sought here must be conserved to a clear case where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation. (5) Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for any order which the Court might make between the parties. This is because, to secure relief, the claimants must demonstrate that no order could be made which would be within jurisdiction. The resulting burden is a heavy one. (6) Accordingly, whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings. That is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made. (7) Similarly, the jurisdiction to terminate an action summarily for want of a cause of action is to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated.

What was said by his Honour largely involved a restatement of what was said in Nagle v Tilburg , albeit in a form convenient for present purposes. 21 The issue thus posed to Boland J, subject to the grant of the extension of time sought by the appellant and if the extension was necessary, was to be dealt with in accordance with those principles appropriately adjusted to take into account the appellant's reliance on s 154 and, to the extent relevant, rule 82. 22 Although the whole of the principles had to be kept in mind, those numbered (3) and (4) in the extract from Virtue were particularly pertinent. It has also to be observed that the grant of declaratory relief is always in the discretion of the judge hearing the matter although its utility in appropriate cases is well recognised in this jurisdiction and in the general courts. Indeed, there are a number of recent authorities in this jurisdiction which make plain the scope for, and availability of, appropriate relief provided by s 154: for example, Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at 126 - 127; Ford v SAS Trustee Corporation (2000) 98 IR 444 at 476; State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 at [20] and "A" v Commission for Children and Young People [2001] NSWIRComm 194 at [8] (judgment subject to appeal). 23 The crucial issues before his Honour, subject to the extension of time, were related issues which, at least in the way they were posed to his Honour, were discretionary and were first whether the interlocutory application should be considered as falling within principle (3) or principle (4) of the principles in Virtue (considered in context of the principles as a whole) and the related consideration whether it was appropriate, as a matter of discretion, to consider the grant of declaratory relief. 24 In those circumstances the issue whether an extension of time should be granted as to the appellant's application under rule 82 was, as we have earlier observed, of limited significance. Particularly so, as in this jurisdiction, procedural questions, including those relating to extensions of time in proceedings already on foot, have always been dealt with in accordance with "modern judicial practice": see, for example, Fernance v Wreckair Pty Ltd (1991) 22 NSWLR 439 at 458, Production Panel Beating & Spray Painting Pty Ltd v Newnham (1990) 33 IR 311 at 315, 328 and Hyde v Energy Australia (1999) 92 IR 409 at 423. In any event, his Honour's conclusion that, in the circumstances before him, the appellant required an extension of time to advance its claim for declaratory relief was incorrect. 25 We therefore make the following orders in this matter: 1. Leave to appeal granted. 2. Appeal upheld. 3. Matter No IRC 6498 of 1999 remitted to Boland J, for hearing and determination, in accordance with these reasons, subject to his Honour's availability.

[The Court then heard counsel on the question of costs and made the following additional orders] 4. The respondent shall pay the appellant's costs as agreed, or in default of agreement, as assessed.

The respondent, if otherwise qualified, is to have a certificate under the Suitors' Fund Act 1951.

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