Industrial Relations Commission of New South Wales in Court Session CITATION : Abigroup Contractors Pty Limited v Inspector Kathleen Maltby [2002] NSWIRComm 18 APPELLANT: Abigroup Contractors Pty Limited PARTIES : RESPONDENT: Workcover Authority of New South Wales (Inspector Kathleen Maltby) FILE NUMBER: IRC 7384 & 7385 of 2001 CORAM: Walton J Vice-President; ; Boland J CATCHWORDS : Application to extend time to appeal - Application for leave to appeal and appeal - Application to extend time granted by consent - Appellant sought to raise new matters on appeal not relied upon at first instance - Appellant aware of these matters at trial due to a judgment of another member of the Court issued earlier in proceedings - Operation of s4(1) Supreme Court (Summary Jurisdiction) Act 1967 considered - Application of s179 of Industrial Relations Act 1996 considered - Leave to appeal refused - Appeal dismissed - Costs ordered Criminal Appeal Act 1912 s5F LEGISLATION CITED : Industrial Relations Act 1996 s179 s188 Occupational Health and Safety Act 1983 s49(4) Supreme Court (Summary Jurisdiction) Act 1967 s4 Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380 CASES CITED : WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Limited [2001] NSWIRComm 239 WorkCover Authority of New South Wales v State Rail Authority (2000) 101 IR 271 HEARING DATES: 12/13/2001 EXTEMPORE JUDGMENT DATE : 12/13/2001 APPELLANT: Mr B Hodgkinson SC SOLICITOR: Mr J Catanzariti Clayton Utz Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Mr P Skinner of counsel SOLICITOR: Mr N Correy Moray & Agnew Solicitors JUDGMENT: 3 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J VP HUNGERFORD J BOLAND J THURSDAY 13 DECEMBER 2001 IRC 01/7384 - ABIGROUP CONTRACTORS PTY LIMITED v INSPECTOR KATHLEEN MALTBY. Application to extend to appeal and appeal against orders and determination of Justice Wright given on 7 February 2001 in matter Nos IRC5432,5433,5434,5436 & 5438 of 1999. IRC O1/7385 - LUIS BUSTAMANTE v INSPECTOR PAUL ANTHONY MANSELL Application to extend time to appeal and appeal against orders and determinations of Justice Wright given on 7 February 2001 in matter Nos IRC 5502 & 5503 of 1999. EXTEMPORE JUDGMENT: WALTON J VP: These matters concern applications for leave to appeal and if granted an appeal from the decision of Wright J given on 7 February 2001 to make orders directed to the appellants under s4(1) of the Supreme Court (Summary Jurisdiction) Act 1967. The appellants also made an application to extend time to appeal which, at the commencement of the proceedings today and in the absence of opposition by the respondent, we granted. We note the appellants accepted that they were required to obtain leave to appeal in order to bring their appeals. It is, therefore, unnecessary for us to decide whether this appeal arises under s5F of the Criminal Appeal Act 1912 or s188 of the Industrial Relations Act 1996. We consider that the application for leave to appeal may be simply resolved applying the principles in Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. We consider that leave to appeal should be refused as the appellants failed to raise any of the primary issues which they now seek to raise on appeal at first instance. Notwithstanding that at the relevant time they were well appraised of these issues due to the proceedings before and a decision issued by Schmidt J in WorkCover Authority of NSW v SRA (2000) 101 IR 271. Indeed, the appellants, at first instance, did not oppose the orders made by his Honour. In reaching this decision we have also taken into account the appellant's failure to appeal the judgment of Kavanagh J in WorkCover Authority (Inspector Maltby) v Abigroup Contractors Pty Limited [2001] NSWIRComm 239. However, we are compelled, by some of the submissions made by the appellants in support of the application for leave, to make some further observations which relate to the strength of the appellants' case for leave: Firstly, and without deciding the matter finally, we have real doubts as to whether, having regard to the provisions of s4(1) of the Supreme Court (Summary Jurisdiction) Act that his Honour was in fact required to consider whether s49(4) of the Occupational Health and Safety Act 1983 operated, in the circumstances of these matters, to preclude the issuing of such orders. On its face, s4(1) enables the order made to require the defendant to appear before a Judge to "answer the charge" alleged against it. Whether any such charge ultimately be made out, either in terms of jurisdiction or merit, is not a matter relevantly open in the initiation of proceedings, particularly where such an order maybe made ex parte . Secondly, we have some considerable misgivings about the appellants' submission as to s179 of the Industrial Relations Act 1996. We do not review Kavanagh J's decision at first instance which, on one view, is directed to whether the orders made by Wright J per se may be impeached. However, the appellant went so far as submitting that s179 of the Industrial Relations Act 1996 operated in such a way as to preclude a member of the Commission (even in arbitral proceedings) from questioning (that is, arriving at a different view) to a decision of another member, even where different parties were involved in later proceedings. This is said to extend to proceeding where a Full Bench is considering an earlier judgment of a single member or by another Full Bench. We have real doubts the section operates in such a manner. We are of the view, if such an issue had to be decided, then it should only be, unlike here, where the Full Bench has the benefit of reasoning at first instance. We do not sit to make first instance decisions and that is a matter going directly to the question of leave to appeal. We order: (1) Leave to appeal is refused. (2) The appeal is dismissed. (Mr Shaw sought costs of the application for leave to appeal). We make a further order that the appellant shall pay the costs of the respondent as agreed or as assessed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.