New South Wales Court of Appeal CITATION: Chubb Security Australia Pty Ltd v Industrial Relations Commission of New South Wales & Anor [2005] NSWCA 334 HEARING DATE(S): 26 September 2005 JUDGMENT DATE: 26 September 2005 JUDGMENT OF: Giles JA DECISION: Notice of motion filed on 13 September 2005 dismissed with costs. CATCHWORDS: Proceedings in Industrial Commission - application to Supreme Court for prerogative relief - contended that Commission acted beyond jurisdiction - whether stay of proceedings in Commission pending hearing of application - for reasons including right of appeal to Full Bench and doubt that any error went to jurisdiction, in exercise of discretion, stay refused. Solution 6 Ltd v Industrial Relations Commission (2004) 60 NSWLR 558; CASES CITED: O'Keefe v Industrial Relations Commission of New South Wales in Court Session (NSWCA, 16 May 2005, unreported). Uniting Church in Austrtalia Property Trust (NSW) v Industrial Relations Commission of New South Wales in Court Session (2004) 60 NSWLR 602; Chub Security Australia Pty Ltd - Claimant Industrial Relations Commission of New South Wales - First Opponent PARTIES: Inspector Wilson (Workcover Authority of New South Wales) - Second Opponent FILE NUMBER(S): CA 40672/05 J N West QC & S E J Prince - Claimant COUNSEL: J Agius SC & P McDonald - Opponents Corrs Chambers Westgarth - Claimant SOLICITORS: Legal Group, Workcover Authority of NSW - Opponents LOWER COURT JURISDICTION: Industrial Relations Commission of New Soth Wales LOWER COURT FILE NUMBER(S): IRC 4908/03 LOWER COURT JUDICIAL OFFICER: Staunton J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40672/05 IRC 4908/03 GILES JA Monday 26 September 2005 CHUBB SECURITY AUSTRALIA PTY LTD v INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES & ANOR Judgment 1 HIS HONOUR: This is an application for an order that proceedings in the Industrial Relations Commission be stayed until the determination by this Court of an application for prerogative and allied relief seeking to challenge the jurisdiction of the Commission. The history can be briefly recounted as follows. 2 The claimant provided security services to the Punchbowl Ex-Services and Community Club. The services included a cash pickup service. The claimant subcontracted the last mentioned service to ATS All Time Security Pty Limited. It employed as a security guard one Ahmed Rashid. 3 On 3 September 2001 Mr Rashid was picking up cash from the Club in the course of his duties, when a robber attacked him and during the struggle he was shot and fatally wounded. 4 In 2003 proceedings were brought by the second opponent against the claimant, ATS and the sole director of ATS, Mr Ghafoor. All were charged with offences under the Occupational Health and Safety Act 2000. The essence of the charges against ATS and Mr Ghafoor was that they had failed to take due care of the health and safety of ATS's employee Mr Rashid. The offence against the claimant was alleged under s 8(2) of the Act, which reads - "An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work." 5 There is a definition of "place of work", materially not particularly helpful. 6 A statement of facts was agreed between the second opponent and the claimant, which went into some little detail of the relationship between the claimant, ATS and the Club and what occurred generally in the provision of security services and occurred on 3 September 2001. There was posed for the judge in the Commission the sole question whether what happened to Mr Rashid happened at "the employer's place of work"; that is, whether the Club premises and in particular the car park in which the attack occurred was the claimant's place of work within the meaning of s 8(2) of the Act. It appears from a transcript of a much later date that the claimant indicated before the President of the Commission, and later again indicated before Staunton J who heard and determined the above issue, that a plea of guilty would be entered if the question of place of work was determined adversely to the claimant. 7 The hearing took place before her Honour, and on 29 July 2005 she published reasons in which she expressed her satisfaction beyond reasonable doubt that on 3 September 2001 the Punchbowl RSL and its attendant car park was a place of work for the claimant within s 8(2) of the Act. The proceedings were adjourned to a later date, now standing at 14 November 2005, for formal pronouncement of conviction and submissions on sentence. 8 It is pertinent to note that ATS and Mr Ghafoor had earlier pleaded guilty. Their sentencing hearings had concluded, but her Honour had not sentenced them because she was awaiting the determination of the claimant's proceedings in order that she could sentence the three parties together; understandably enough, in order to ensure that she produced as much parity between them as could be done. 9 On 22 August 2005 the claimant commenced its proceedings seeking prerogative and allied relief in this Court. On 23 August 2005 it applied to her Honour for adjournment of the hearing to deal with conviction and sentence, at that time fixed for 6 October 2005. The application was refused. The reasons given by her Honour in the course of debate were essentially concern at the delay since the events of 2001 and, perhaps more particularly, concern that the sentencing of ATS and Mr Ghafoor should not be delayed. 10 The application presently before me was then filed, on 13 September 2005. 11 The claimant's position was that the judge had erred, in a manner going to jurisdiction, by conflating the notion of the claimant's undertaking with the notion of its place of work, those two notions appearing in s 8(2) of the Act as separate things. It was said also that her Honour had misdirected herself by approaching the construction and application of s 8(2) as beneficial legislation whose object was to be promoted, rather than as legislation relevantly giving rise to criminal offences and commanding a constrained construction and application. And it was said that her Honour had shown in her conclusion that she had applied the wrong test, a test not in accordance with s 8(2), because she said in para 43 of her reasons that the factual circumstances disclosed that the Club premises and the car park was "both an undertaking and a place of work of the defendant" at the time Mr Rashid attended on 3 September 2001: this was said to substitute for the notion of the claimant's place of work, the notion of a place of work of the claimant. 12 The claimant submitted that this was more than an error within jurisdiction, and that if it could not obtain a stay whereby it could seek to demonstrate jurisdictional error in the proceedings commenced on 22 August 2005, it would be met with the privative effect of s 179 of the Act. That effect has been explained in this Court as precluding challenge, short of offence against the Hickman principles (see Solution 6 Holdings Limited v Industrial Relations Commission (2004) 60 NSWLR 558). 13 The response of the second opponent, the first opponent (the Commission) having submitted, was that if her Honour was in error it was an error within jurisdiction. He said that the decision for her Honour was essentially one of fact. It was acknowledged that it was not a question of fact in the sense of finding primary facts, but it was said that the characterisation of the primary facts as amounting or not amounting to the place where the incident had occurred being the claimant's place of work was factual in nature. Any error in that respect, which was not acknowledged, was less than jurisdictional error. 14 The second opponent relied on Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission of New South Wales in Court Session [2004] 60 NSWLR 602 at [51]-[54], and in particular on the decision of the president in O'Keefe v Industrial Relations Commission of New South Wales in Court Session (16 May 2005, unreported). In the last mentioned case the issue was again the characterisation of an employer's place of work. The President declined a stay between a finding against the (there) claimant and conviction and sentence. He did so first, on the ground that there had been very significant delay in invoking this Court's supervisory jurisdiction, and secondly, on the ground that he considered that the claimant's prospects of success were very slight because, applying the principles in the Uniting Church case, the judge was involved in a task which was part of his jurisdiction. 15 In the present case, it seems to me that the factors to be weighed up in what is essentially a discretionary grant or refusal of a stay are these. 16 I accept that there is good reason for the judge to wish to bring to a conclusion the charges against the three defendants, and that it weighs against the grant of a stay, if that would lead to delay in her doing so, that there would be left outstanding for a further period the sentencing of ATS and Mr Ghafoor. They are entitled to know the outcome of the charges brought against them without further delay if that can properly be achieved. Perhaps the conviction and sentencing of the claimant could be deferred for but a short time, with some expedition being attempted in this Court, but that has difficulties given the state of the list and could lead to further difficulties if there are other endeavours to appeal. The status of s 179 is currently under challenge on a number of fronts, and it seems to me it would be an error to take a course which might commit the present parties, and derivatively ATS and Mr Ghafoor, to further delay while the status of s 179 is explored. 17 Secondly, it seems to me that there is force in the fact that, at least in the beginning, the claimant was apparently content to fight its battle in the Commission and, if it lost on the issue of its place of work, then to plead guilty. Some explanation it seems to me is required for a change of mind when a determination adverse to the claimant was made. There was no explanation. 18 Thirdly, there is an appeal to the Full Bench of the Commission. It is not as if the claimant will be left without appellate review. It was suggested that, given the course of authority conveniently seen in the reasons of her Honour, it is not likely that the Full Bench will reach a different decision from that to which her Honour came. Implicit in that, it seems to me, is a considerable degree of acknowledgment that her Honour's decision factual in nature, no doubt underpinned by a view of the operation of s 8(2), but there must be borne in mind the complaints as to her Honour's decision which I have earlier recounted. There is no reason to think that the Full Bench will disregard any submissions put to it that the judge erred in those respects. 19 Fourthly, and this is I think of primary importance, I have difficulty in seeing that any error on the judge's part was an error going to jurisdiction, as distinct from an error within jurisdiction. It is true that, as is pointed out in the Uniting Church case at [54], an error of law may be a jurisdictional error even though there was jurisdiction to embark on the relevant inquiry, and the line between jurisdictional and non-jurisdictional error is difficult to state. Nonetheless, any legal error when the judge was faced with the words in s 8(2) and, having regard to the facts, came to a conclusion as to whether or not the car park of the Club premises was the claimant's place of work, was essentially an error in attributing to the facts a particular character. That was the judge's task. It was carried out. In some circumstances the facts alleged as the basis of an application to a court are incapable of establishing a secondary fact, and that secondary fact may be a jurisdictional fact, but it does not seem to me that the claimant's argument in the present case is a particularly strong one. 20 Taking all these matters together, in my opinion the discretion should be exercised against the grant of a stay. Accordingly, the notice of motion filed on 13 September 2005 should be dismissed with 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.