Industrial Relations Commission of New South Wales in Court Session CITATION : Dr Gibson v Western Sydney Area Health Service (No 4) [2002] NSWIRComm 221 APPLICANT Dr James Gibson PARTIES : RESPONDENT Western Sydney Area Health Service FILE NUMBER: IRC 6498 of 1999 CORAM: Boland J Unfair contract - Practice and procedure - Application to re-open proceedings - Whether special circumstances exist to consider High Court decision not referred to in proceedings - Whether there should have been no order as to costs - Leave to re-open refused CATCHWORDS : Practice and Procedure - Application to re-open proceedings - Whether special circumstances exist to consider High Court decision not referred to in proceedings - Whether there should have been no order as to costs - Leave to re-open refused LEGISLATION CITED : Health Services Act 1997 Industrial Relations Act 1996 Dr Gibson v Western Sydney Area Health Service (No 3) [2002] NSWIRComm 168 Latoudis v Casey (1991) 170 CLR 534 CASES CITED : Saraswati v The Queen (1991) 172 CLR 1 Shergold v Tanner (2002) 76 ALJR 808 Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 HEARING DATES: 08/12/2002 DATE OF JUDGMENT: 09/04/2002 APPLICANT: Mr A Moses of counsel Solicitor: Mr T Unsworth Tress Cocks & Maddox LEGAL REPRESENTATIVES: RESPONDENT: Mr A Gotting of counsel Solicitor: Ms J Mansfield Blake Dawson Waldron JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 4 September, 2002 Matter No IRC 6498 of 1999 DR JAMES GIBSON v WESTERN SYDNEY AREA HEALTH SERVICE Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT (No 4) 1 The applicant, Dr James Gibson, had sought relief by way of an application under s 106 of the Industrial Relations Act 1996. The respondent filed a notice of motion seeking a number of orders including a declaration that the Commission in Court Session had no jurisdiction to hear and determine the applicant's claim for relief. In Dr Gibson v Western Sydney Area Health Service (No 3) [2002] NSWIRComm 168 it was held that the Commission did not have jurisdiction to hear the claims. Orders were made in the following terms: 1) The Court declares 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 1996, the Commission has no jurisdiction to hear and determine any claims that the applicant has made in proceedings numbered 6498 of 1999. 2) The respondent on the notice of motion shall pay the costs of the applicant on the motion as agreed or, failing agreement, as assessed. 2 The applicant subsequently sought leave to re-open the proceedings on the grounds that the Court had not had the opportunity to consider a recent decision of the High Court in Shergold v Tanner (2002) 76 ALJR 808 and that contrary to the Court's judgment no order should have been made as to costs. 3 On 12 August 2002 the Court made directions that the parties file written submissions on the question of whether leave should be granted to re-open. 4 I have considered the parties' written submissions and as to the application that the Court should grant leave to re-open the case to consider Shergold v Tanner, the application is refused. In Shergold v Tanner the High Court (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ) stated that: [A] law … is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably. 5 The High Court went on to observe, however, that this statement "reflects the general principle respecting implied repeal to which Gaudron J referred in Saraswati v The Queen". I have applied the principle in Saraswati and I do not consider that the statement by the High Court quoted above is of such a nature that it constitutes a "matter calling for review": see Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 265. 6 As to the question of costs, I note that one of the orders sought by the respondent in its notice of motion was that the applicant pays the respondent's costs. It is true, as the applicant contended, that the respondent made no submissions on the costs issue. This is not unusual given the usual rule that costs follow the event: Latoudis v Casey (1991) 170 CLR 534. 7 If the applicant wished that the usual rule as to costs should not have been followed for the reasons expressed in its most recent written submissions, there was ample opportunity to make submissions in that respect in the course of the hearing of the matter. In the circumstances, I do not propose to re-open the proceedings in relation to costs. In any event, I note that the applicant has filed an appeal against interlocutory judgment (No 3). 8 I order that: 1) The application for leave to re-open is refused. 2) The applicant pays the respondent's costs of the application for leave to re-open. 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.