New South Wales Court of Appeal CITATION: Rockdale Beef Pty. Limited v. Industrial Relations Commission & Anor. [2005] NSWCA 369 HEARING DATE(S): 24 October 2005 JUDGMENT DATE: 24 October 2005 JUDGMENT OF: Hodgson JA at 1 DECISION: Application for stay of proceedings refused. CATCHWORDS: PROCEDURE - Court of Appeal - Interlocutory application for stay of proceedings in Industrial Relations Commission - Power not to be exercised lightly Country Engergy v. Malone [2005] NSWIRComm 78 CASES CITED: Newcrest Mining v. Industrial Relations Commission of NSW & CFMEU [2005] NSWCA 85 Morrison v. Joy Manufacturing Co. Pty. Ltd. [2004] NSWIRComm 107 Rockdale Beef Pty. Limited - claimant PARTIES: Industrial Relations Commission - 1st opponent Inspector Ross Wolf - 2nd opponent FILE NUMBER(S): CA 40745/05 Mr. N. Cotman SC with Mr. Bell for claimant COUNSEL: Mr. J. Agius SC with Mr. Skinner for 1st opponent Terrett Lawyers, Sydney for claimant SOLICITORS: I.V. Knight, Crown Solicitor, Sydney for 1st opponent LOWER COURT JURISDICTION: Industrial Relations Commission LOWER COURT FILE NUMBER(S): Not known LOWER COURT JUDICIAL OFFICER: Schmidt J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40745/05 HODGSON JA Monday 24 October 2005 ROCKDALE BEEF PTY. LIMITED V. INDUSTRIAL RELATIONS COMMISSION Judgment 1 HODGSON JA: I am dealing with an application by Rockdale Beef Pty Limited, the claimant, filed on 13 October 2005, to stay certain proceedings before the first opponent, the Industrial Relations Commission of New South Wales, and to expedite the hearing in the Court of Appeal of a summons. 2 The proceedings in the Industrial Relations Commission arise out of charges, brought against the claimant, of breaches of sections 8 and 10 of the Occupational Health and Safety Act 2000. These charges came to a hearing before Schmidt J in May 2005. 3 On 20 May 2005, Schmidt J ordered that the charge under section 10 be dismissed on the basis that the charge failed to specify an essential element of the alleged offence. 4 On 27 May, Schmidt J gave judgment in which she found that the conduct by the prosecution of the charge under section 8 involved an abuse of process that would justify a permanent stay of the proceedings pursuant to that charge. 5 Her Honour did not then make that order, and on 3 June 2005, she gave judgment in which she held that she would state a case under section 5AE of the Criminal Appeal Act 1912, as requested by the prosecution, before making an order in relation to the charge under section 8. The questions to be submitted to the Full Bench of the Industrial Relations Commission were determined by her in a judgment given on 12 August 2005, and the document referring these questions to the Full Bench was filed on 19 August 2005. 6 On 30 August 2005, there was an appeal lodged in respect of the decision on the section 10 matter under section 5C of the Criminal Appeal Act, as made applicable by section 196 of the Industrial Relations Act, together with an application for extension of time for that appeal. On the same day, there was an application filed for declarations to the effect that Schmidt J had erred in determining that she would order permanent stay of the section 8 proceedings. 7 All those three matters, that is, the stated case, the appeal under section 5 C and the application for declarations were, on 31 August 2005, fixed for hearing before the Full Bench of the Industrial Relations Commission on 8, 9 and 12 December 2005. Essentially, it is that hearing which the claimant seeks to have stayed pending the resolution of a summons brought in the Court of Appeal which, in its amended form, seeks among other things orders prohibiting the Full Bench of the Industrial Relations Commission from dealing with the three matters. 8 What is put on behalf of the claimant is that it has substantial grounds for the relief which it seeks, and that, as a matter of discretion, the proceedings in the Full Bench of the Industrial Relations Commission should be stayed: firstly, because the claimant would be put to significant costs which may well be unrecoverable if the hearing proceeds; and secondly, because, if the hearing proceeds and orders are made, section 179 of the Industrial Relations Act would make it extremely difficult for the claimant to agitate the matters which, in its submission, indicate that the proceedings before the Full Bench are an abuse of process or otherwise beyond its jurisdiction. 9 Mr Cotman SC for the claimant submits that the decision on the section 8 matter is an interlocutory decision in relation to which there is no appeal, and that the proceedings by way of stated case and application for directions seek to attack the decision collaterally, making them an abuse of process, because they have an improper objective or because they seek to keep alive proceedings which will be the subject of procedural abuse if they are allowed to continue. 10 In relation to the section 10 appeal, it is submitted that this too is an abuse of process, because it seeks to reinstate a prosecution which, on the prosecutor's own evidence, is doomed to fail; and also on the basis that it is incompetent because of the section 10 charge was dismissed and not quashed as would be required by section 5C of the Criminal Appeal Act. 11 Mr Cotman also submitted that, having regard to the provisions of section 179, this court is no longer reluctant to intervene in advance of the hearing of matters in the Industrial Relations Commission, where the substantial possibility of an abuse of process or action beyond jurisdiction is indicated. 12 I accept that last submission to some extent, but in my opinion, the power of this Court to order a stay of proceedings in the Industrial Relations Commission should not be exercised lightly and, as stated by Bryson JA in Newcrest Mining v. Industrial Relations Commission of New South Wales & CFMEU [2005] NSWCA 85 at [5], it should generally be exercised only if the outcome which is likely if there was no stay be so adverse and severe that justice requires interlocutory intervention. 13 It does not seem to me that the matters raised by Mr Cotman sufficiently indicate abuse of process or the likelihood of an excess of jurisdiction as to justify this Court ordering a stay of proceedings in the Industrial Relations Commission. 14 It seems to me that the question whether the situation in relation to the section 8 proceedings are amenable to a stated case under section 5AE is essentially a question appropriate to be dealt by the Full Bench of the Industrial Relations Commission. It seems to me also that the questions raised by the appeal are also appropriate to be dealt with by the Full Bench, and my opinion is that it is appropriate that the Full Bench determine any submission that these are abuses of process. 15 The question of the application for declarations perhaps falls into a different category. I have been referred to a decision of the Full Bench of the Industrial Relations Commission in Country Energy v. Malone [2005] NSWIRComm 78, where the Full Bench held at paragraphs [54] to [62] that, at least in some circumstances, the jurisdiction of the Industrial Relations Commission to make declarations under section 154 of the Industrial Relations Act may be available in respect of interlocutory matters, where an appeal is not available, as indicated by the decision of Morrison v. Joy Manufacturing Co. Pty. Ltd. [2004] NSWIRComm 107. 16 In Country Energy, the jurisdiction was used to prevent a prosecution proceeding, where the Full Bench was of the view that the primary judge had made a mistake in deciding that the prosecution could proceed; so that the declaration in that case, in effect, prevented a prosecution proceeding. Assuming that is correct, whether the same would apply in relation to a decision to stay a prosecution for an abuse of process might be open to doubt; but on the other hand, it does not seem to me that this is a matter inappropriate for the Full Bench of the Industrial Relations Commission to deal with; and certainly I do not think any doubts I have about the matter would justify the grant of a stay, in circumstances where the other two matters would be proceeding, and it does not seem to me that the inclusion of this third matter would add very substantially to the proceedings. 17 For those reasons, in my opinion there should not be a stay of proceedings granted. 18 On the question of expedition, it seems to me that the possibility of having this matter listed for final hearing by the Court of Appeal at a time when there is a realistic possibility of a judgment being given before 8 December, much less before a time when preparations for a hearing on 8 December would be proceeding, is too remote to justify making an expedition order for that purpose. I think if that were to be sought, it should have been sought very quickly after 31 August, when the matters were fixed for hearing in December. 19 For those reasons, I am not prepared to expedite the hearing. ********** 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.