Reported Decision: 166 IR 192 New South Wales Court of Appeal CITATION: HOLLINGSWORTH v INDUSTRIAL COURT OF NSW & ANOR [2007] NSWCA 209 HEARING DATE(S): 13/08/2007 JUDGMENT DATE: 23 August 2007 JUDGMENT OF: Spigelman CJ at 1; Mason P at 2; Handley AJA at 3 DECISION: 1. Summons dismissed with costs, including the costs of the first opponent as a submitting party. CATCHWORDS: EMPLOYMENT LAW – Industrial Court – Jurisdiction - powers - INDUSTRIAL LAW – Industrial Court – Power to reopen final orders - COURTS – Industrial Court – not court of final appeal LEGISLATION CITED: Industrial Relations Act 1996 Industrial Relations Commission Rules DJL v Central Authority (2000) 201 CLR 226 Gamser v Nominal Defendant (1977) 136 CLR 145 Gosper v Sawyer (1985) 160 CLR 548 Ove Arup Pty Ltd v WorkCover Authority [2005] NSW IRComm 49 (2005) 141 IR 78 Phillips v Walsh (1990) 20 NSWLR 206 CASES CITED: Porteous v McMartin [2007] HCA Trans 311 (28/6/07) R v Marks (1981) 147 CLR 471 R v Reardon [2004] NSWCCA 197, 60 NSWLR 454 State Rail Authority (NSW) v Codelfa Construction Pty Ltd (1982) 150 CLR 29 The Mutual Life And Citizens Assurance Company Ltd v Thiel (1919) 27 CLR 18 Wilcox v Richardson (8/6/1999 CA U-R) Wishart v Fraser (1941) 64 CLR 470 Kim Hollingsworth - Claimant PARTIES: Industrial Court of New South Wales - 1st Opponent Commissioner of Police of NSW - 2nd Opponent FILE NUMBER(S): CA 40137/2007 COUNSEL: D. Patch - Claimant P. Kite SC & D. Chin - 2nd Opponent SOLICITORS: Paul Murphy & Associates Lawyers - Claimant IV Knight, Crown Solicitor - 1st and 2nd Opponents LOWER COURT JURISDICTION: Industrial Court of New South Wales LOWER COURT FILE NUMBER(S): IRC 2074/2006 LOWER COURT JUDICIAL OFFICER: Walton J - Vice-President, Boland J, Backman J LOWER COURT DATE OF DECISION: 08/02/2007 LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWIR Comm 7 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40137/07 SPIGELMAN CJ MASON P HANDLEY AJA 23 August 2007 HOLLINGSWORTH v INDUSTRIAL COURT OF NEW SOUTH WALES & ANOR EMPLOYMENT LAW – Industrial Court – Jurisdiction - powers INDUSTRIAL LAW – Industrial Court – Power to reopen final orders COURTS – Industrial Court – not court of final appeal The Industrial Relations Commission in Court Session ordered that the claimant be reinstated as a student police officer. The position of student police officer had been abolished in the meantime, and the parties agreed that the claimant would not enforce the order if she qualified for appointment as probationary constable. The claimant failed to qualify despite attempts to do so. She then sought to have the orders varied. The Industrial Court held that it had no express or implied power to reopen the orders. The claimant sought prerogative relief in the Court of Appeal. HELD: The Industrial Court is not a Court of last resort and has no power to reopen its final orders once they have been perfected. ORDERS 1. Summons dismissed with costs, including the costs of the first opponent as a submitting party. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40137/07 SPIGELMAN CJ MASON P HANDLEY AJA 23 August 2007 HOLLINGSWORTH v INDUSTRIAL COURT OF NEW SOUTH WALES & ANOR Judgment 1 SPIGELMAN CJ: I agree with Handley AJA. 2 MASON P: I agree with Handley AJA. 3 HANDLEY AJA: On 21 May 1999 the Industrial Relations Commission In Court Session (the Court Session) allowed an appeal by the claimant from a decision of the Full Bench of the Commission, set aside that decision, and varied orders made by Commissioner Connor on 3 October 1997. The Court Session ordered that the claimant be reinstated by the Commissioner of Police to her former position as a student police officer, that she recommence her training with the next intake of police recruits, and that she be paid $35,000. 4 Those orders were not carried out because the position of student police officer had been abolished in the meantime, although this had not been an issue before the Court Session. The parties entered into an agreement on 24 August 1999 to enable the claimant to qualify for appointment as a probationary constable. She undertook not to enforce the orders if the Commissioner performed his obligations under the agreement, but if he did not do so her right to enforce them would not be waived. 5 Despite a number of attempts the claimant failed to qualify for appointment as a probationary constable but it has not been suggested that this was due to any fault or neglect on her part, or on the part of the Commissioner. Following earlier inconclusive proceedings, on 16 August 2006 the claimant filed a Notice of Motion before the Industrial Court (the successor of the Court Session) seeking to vary the orders made by Commissioner Connor or those made by the Court Session. 6 The orders made by Commissioner Connor had been superseded by the orders of the Court Session and were no longer operative: Wishart v Fraser (1941) 64 CLR 470; R v Marks (1981) 147 CLR 471, 476. To that extent the Notice of Motion was incompetent. 7 The variations which the claimant sought in the orders of the Court Session would have significantly changed the substance of its earlier orders. The practice of the Industrial Court and its predecessor has been to treat its orders as entered immediately they are pronounced orally in open court: Ove Arup Pty Ltd v WorkCover Authority [2005] NSW IRComm 49; 141 IR 78, 87-8 par [26]. Whether this practice should continue or an alternative such as automatic deferred entry should be introduced is a matter for the Industrial Court. 8 On 8 February 2007 the Industrial Court (Walton VP, Boland and Backman JJ) dismissed the motion on the ground that there was no express or implied power to reopen the orders. The claimant has applied by Summons for an order in the nature of certiorari to quash this decision, and for an order in the nature of mandamus requiring the Industrial Court to hear and determine the Notice of Motion on its merits. 9 Mr Patch, Counsel for the claimant, based the claims for relief on the existence of an implied power or jurisdiction in the Industrial Court, as a court of last resort, to amend its orders to remedy an injustice which would otherwise go unremedied. 10 The short answer to this submission is that the Industrial Court is not a court of last resort. Section 179 of the Industrial Relations Act, in its current form, prevents decisions of the Court being reviewed in this Court for non-jurisdictional error, but they are not otherwise protected. The Industrial Court is at the apex of the industrial tribunals of this State but, within its jurisdiction, it is not the Supreme Court: The Mutual Life and Citizens Assurance Company Ltd v Thiel (1919) 27 CLR 187. Compare Porteous v McMartin [2007] HCA Trans 311 (28/6/07). Its decisions in the exercise of Federal jurisdiction can be appealed by special leave to the High Court: Gosper v Sawyer (1985) 160 CLR 548. 11 The Court of Appeal has no power to reopen its final orders once they have been perfected: Gamser v Nominal Defendant (1977) 136 CLR 145; Wilcox v Richardson (8/6/1999 CA u/r), nor does the Court of Criminal Appeal: R v Reardon [2004] NSWCCA 197, 60 NSWLR 454. 12 In State Rail Authority (NSW) v Codelfa Construction Pty Ltd (1982) 150 CLR 29, 38 an application to reopen an appeal was made before the orders of the High Court had been entered. Dicta by Mason and Wilson JJ support the existence of a power in the High Court, as a court of last resort, to reopen its orders even after they have been perfected. There is, as yet, no decision of the High Court in which that has been done: DJL v Central Authority (2000) 201 CLR 226, 247-8 par [44]. The caution of the High Court does not encourage a search for other Australian courts of final resort which might have this power. 13 In my judgment therefore the claimant's attack on the decision of the Industrial Court fails on the only ground on which it was supported. 14 Reference was made during argument to that part of s.179(1) which provides that a decision of the Commission (which includes the Industrial Court for this purpose) is final. It is not presently relevant because it is directed to other courts and tribunals and not to the Commission itself. Thus s.179(1) does not make interlocutory decisions of the Industrial Court final in that Court, and they may be reviewed and reopened by it in accordance with familiar principles. 15 Entry of the orders of the Industrial Court does not foreclose all avenues for their revision. Rules 38 and 151 of the Industrial Relations Commission Rules embody the familiar slip rule (see Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195) and orders obtained by fraud may be set aside in proceedings brought for that purpose. Other exceptions and qualifications were referred to by McLelland J in Phillips v Walsh (1990) 20 NSWLR 206, 209-10: "… subsequent to a final order application may be made for the purpose of dealing with a matter involved in, or arising in the course of, working out that order; for example, by making more specific provision for its implementation or by modifying its operation to take account of some subsequent change of circumstances or by enforcing it. This exception or qualification does not, however, extend to an application made for the purpose of giving substantive relief not sought in the Statement of Claim or which is substantially different to that given by the final order … In a final order, liberty to apply is often expressly reserved as authority to make a subsequent application for the purpose of dealing with a matter involved in or arising in the course of working out the order; but the absence of an express reservation of liberty to apply does not preclude such an application" (citations omitted). 16 These principles do not support the relief claimed in the Notice of Motion which was substantially different from that granted by the final orders of the Court Session. 17 The Summons should be dismissed with costs, including the costs of the first opponent as a submitting party. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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