Industrial Court of New South Wales CITATION: Faber v Greyhound & Harness Racing Regulatory Authority of New South Wales [2007] NSWIRComm 207 APPELLANT: Craig Faber PARTIES: RESPONDENT: Greyhound & Harness Racing Regulatory Authority of New South Wales FILE NUMBER(S): IRC 118 of 2007 CORAM: Walton J Vice-President; Staunton J; Backman J CATCHWORDS: Appeal - s 371 of Industrial Relations Act - when requirements of Industrial Court to use best endeavours to settle matter met - failure of CIM to meet obligations - decision below invalid - leave to appeal granted - appeal upheld - matter remitted LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Yetzotis v Crown in the Right of the State of New South Wales (Commissioner of Corrective Services) [2005] NSWIRComm 302 HEARING DATES: 10 August 2007 EXTEMPORE JUDGMENT DATE: 10 August 2007 APPLICANT Mr D Shoebridge of counsel Solicitors: Turner Freeman Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms E Kennedy of counsel Solicitors: Holman Webb Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: WALTON J, Vice-President STAUNTON J BACKMAN J Friday 10 August 2007 Matter No IRC 118 of 2007 CRAIG FABER v GREYHOUND & HARNESS RACING REGULATORY AUTHORITY OF NEW SOUTH WALES Application by Craig Faber for leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart given on 11.1.2007 in Matter No CIM 106640 of 2006 JUDGMENT OF THE COURT Ex tempore [2007] NSWIRComm 207 1 This matter concerns an application for leave to appeal and, if granted, appeal by Craig Faber from the decisions of Chief Industrial Magistrate Hart given on 11 January 2007 and 22 June 2007 (the latter decision considering the question of costs). 2 It is unnecessary in this matter for us to comment upon the substance of the matter, as stated in the Notice of Appeal and the contentions filed by the parties. This is so because the appeal must be considered in the light of the operation of s 371 of the Industrial Relations Act 1996. 3 The relevant background consideration to that question is the proceedings before the Chief Industrial Magistrate of 1 August 2006. On that occasion his Honour, having called the matter, indicated to the parties that (after being informed by the parties that they were content to explore settlement) he would stand the matter down in the list for that purpose. The record of the proceedings on that day indicates that his Honour had intended to make the suggestion, in any event, that settlement discussions should occur, as well as encouraging discussion as to some other matters. His Honour indicated that that course was desirable because the claim is "substantial". 4 Whilst the record of the proceedings does not indicate the eventual outcome of the negotiations between the parties, it is clear from their submissions today, and a notation on the transcript, that the parties were unsuccessful in their settlement discussions. No further steps were taken thereafter by the Chief Industrial Magistrate to achieve a settlement of the proceedings. 5 This matter requires the consideration of the judgment of the Full Bench of the Industrial Commission of New South Wales in Court Session (as it was then known) in Yetzotis v Crown in the Right of the State of New South Wales (Commissioner of Corrective Services) [2005] NSWIRComm 302. 6 In that matter, the Court had before it a recognition by the respective interests that the provisions in s 371 had not been complied with. In the joint judgment of Walton J, Vice-President and Schmidt J (with which Wright J, President, concurred), it was concluded that a failure to carry out the requirements of s 371 of the Act, and the obligations imposed by it, had the effect of rendering the decision invalid (at [27]). 7 It was unnecessary, in the circumstances of that matter, for the Court to consider the particular circumstances in which s 371 might operate, having regard to the requirements of sub-section (1) that: The Industrial Court is not to make an order under this Part until it is brought, or has used its best endeavours to bring the parties to the application for the order to a settlement acceptable to those parties. 8 However, Wright J, in his minority judgment did, in obiter dicta, consider what obligations repose in the Industrial Court as a result of the requirement of s 371(1) that the Court will use its best endeavours to bring the parties to a settlement. 9 His Honour made the following observations (at [3]): 3 As their Honours observe, because it was common ground in the appeal that no steps had been taken to give effect to the requirements of s 371(1), it is unnecessary to determine in these proceedings the precise effect of the obligation in s 371(1) on the court to use "its best endeavours to bring ... the parties ... to a settlement acceptable to those parties". However, in very many cases, the practical obligation on the court dealing with the matter to use its best endeavours will be of great significance and may require the court to expend significant energy and perhaps ingenuity, although not necessarily a great amount of time, in assisting the parties to reach an appropriate settlement. 10 We concur with the observations made by his Honour as to the requirements of s 371(1) in relation to proceedings brought under Pt 2 of Chapter 7 of the Act. It is upon the principles there stated that we propose to resolve the issue presently before us on appeal. 11 Ms E Kennedy, of counsel, who appeared for the respondent to the appeal, the Greyhound & Harness Racing Regulatory Authority of New South Wales, submitted that the requirements of s 371(1) had been satisfied in the proceedings before the Chief Industrial Magistrate. Whilst the respondent initially suggested that there may have been some aspects of the proceedings before the Chief Industrial Magistrate which may have borne upon the question of the operation of s 371 other than the transcript of proceedings on 1 August 2006, the submissions of the respondent were ultimately developed only in the light of the events of that day. It follows, therefore, that the resolution of the question as to the operation of s 371 must be judged against the steps taken by the Chief Industrial Magistrate to permit the parties to engage in settlement discussions on that occasion. 12 Mr D Shoebridge, of counsel, who appeared for the appellant, submitted that the steps taken by the Chief Industrial Magistrate were insufficient to meet the requirements of s 371. On the other hand, Ms Kennedy, submitted that the sub-section had been complied with by the Chief Industrial Magistrate. She submitted that it was sufficient for the Chief Industrial Magistrate to have ensured that the counsel representing the respective interests had engaged in a proper process of settlement and been given adequate opportunity to do so. It was submitted that that was sufficient in a busy court, such as the Chief Industrial Magistrate's Court, and that each case had to be judged on its particular facts and circumstances. The respondent contended that the fact that the parties had indicated that they would desire settlement, and the Chief Industrial Magistrate permitted them to do so where experienced counsel represented both sides, was enough. We do not agree. 13 The principles stated by Wright J, which we have earlier referred to, indicate in clear terms that it was not sufficient for the Chief Industrial Magistrate, in proceedings under Pt 2 of Ch 7 of the Act, to merely engage in a process which was permissive of parties engaging in inter partes settlement discussions. Without wishing to be definitive of the obligations imposed by s 371(1) of the Act, it is clear that a limited step of that kind will not be enough. It does not meet the requirements stated by the President, that the Court must expend significant energy and perhaps ingenuity, albeit over a short period of time, in order to resolve the differences between the parties. We say that we do not wish to be definitive because we agree with Ms Kennedy's submission that each case will turn upon its own particular facts and circumstances, but, plainly, the steps taken by the Chief Industrial Magistrate in this case are not enough. 14 It follows, from all of the judgments of the Industrial Relations Commission of New South Wales in Court Session in Yetzotis, that the effect of our conclusion is that the decisions of the Chief Industrial Magistrate under appeal of 11 January and 22 June respectively must be declared invalid. The result of that conclusion is that leave to appeal must be granted and the appeal upheld on that particular basis, namely, the appeal is upheld so as to give effect to the conclusion that the decision below is invalid for failure to comply with the requirements of s 371(1) of the Act. 15 We have given active consideration in this matter as to whether, in the light of submissions advanced for the appellant, it would be appropriate for us to resolve the questions raised by the appeal ourselves, including taking steps under s 371. Without finally deciding the matter, it would appear that if we were to take that course, the obligations of s 371 may, nonetheless, apply to the Court sitting on appeal. However, we have determined that the most appropriate course in this matter, acknowledging the particular difficulties created for Mr Faber in the circumstances of the case, is to remit the matter for hearing before an Industrial Magistrate. We note the submission of Mr Shoebridge that it would be preferable if Chief Industrial Magistrate Hart were not to hear the matter on the remitter. We do not propose to make any order in that respect but observe that that would seem to be the appropriate course. 16 That leaves the question of costs. We will now briefly hear counsel on that final question in the disposition of the appeal. [Submissions were received from counsel on costs.] 17 Having heard counsel on the question of costs and noting that the appellant has made an application for costs, which is resisted by the respondent in the proceedings, we conclude that the appropriate orders on the appeal are that each party should pay its own costs. 18 We note that we raised with the appellant the provisions of Rule 165 and, in particular, whether it has any operation in relation to the provisions of s 371(1) of the Act. This may be the case, but we wish to express no concluded view in that respect. 19 In the circumstances we make the following orders in disposition of the appeal: 1. Leave to appeal is granted; 2. The appeal is upheld; 3. The matter is remitted for hearing to the Local Court at the Downing Centre; and 4. Each party shall pay its own costs. ________________________ 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.