Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sparke v Hay [2014] NSWCA 318 Hearing dates: 2 September 2014 Decision date: 11 September 2014 Before: Macfarlan JA at [1]; Leeming JA at [2]; Tobias AJA at [45] Decision: Dismiss proceedings IRC 754 of 2013 and IRC 957 of 2013, with no order as to costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - whether undetermined proceedings in Industrial Relations Commission deemed to be proceedings in Supreme Court - meaning of "heard or partly heard" - whether hearing on jurisdictional question by improperly constituted Commission amounted to proceeding being "partly heard" - no basis shown for grant of leave to appeal - proceedings dismissed Legislation Cited: Apprenticeship and Traineeship Act 2001 (NSW), ss 55, 80 Industrial Relations Act 1996 (NSW), ss 155, 156, 188, 403B, Schedule 4, cl 58 Industrial Relations Amendment (Industrial Court) Act 2013 (NSW) Supreme Court Act 1970 (NSW), s 48 Cases Cited: Eberstaller v Poulos [2014] NSWCA 211 Khatri v Price [1999] FCA 1289; 95 FCR 287 Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1999] FCA 1572; 94 FCR 384 Sparke v Hay [2013] NSWIRComm 70 Sparke v State Training Services [2014] NSWIRComm 3 Zhang v Zemin [2010] NSWCA 255; 79 NSWLR 513 Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 30 October 2013 Category: Principal judgment Parties: David Sparke (First Applicant) Beeox Corporation Pty Ltd (Second Applicant) G Peter Hay (Respondent) Representation: Counsel: In person (First applicant and for Second Applicant) Y Shariff (Respondent) Solicitors: Department of Education and Communities (Respondent) File Number(s): 2014/83846; 2014/83692 Decision under appeal Citation: [2013] NSWIRComm 66; [2013] NSWIRComm 70 Before: Staff J; Boland J File Number(s): IRC 957 of 2013; IRC 754 of 2013 Judgment 1MACFARLAN JA: I agree with Leeming JA. 2LEEMING JA: Transitional provisions, enacted following changes to the Industrial Relations Commission (Commission), deemed certain undetermined appeals to have been commenced in this Court. Two such proceedings were listed before the Court, for determination whether they engaged the transitional provisions, whether in fact there was a right of appeal, and whether leave to appeal should be granted. I have concluded that the transitional provisions deem each proceeding to be before this Court, and that they should be dismissed, because even if there is a right of appeal, it is subject to leave, and leave should be refused. Factual background 3The first applicant, Mr David Sparke, commenced an electrical apprenticeship with the second applicant, Beeox Corporation Pty Ltd (Beeox), on 1 June 2009. Mr Sparke was then aged 57. He was the managing director of a company which traded as OneWaterNaturally. Mr Sparke's residential address is the same as that of Beeox. Beeox is described as Mr Sparke's wife's company and, when this matter was heard, Mrs Sparke appeared for it and asked that her husband be permitted to be heard on behalf of Beeox, as well as on his own behalf (at all times, Mr Sparke has represented himself). 4A complaint was made by Mr G Peter Hay, an officer within State Training Services, dated 20 January 2012, recommending that the apprenticeship be cancelled "as at commencement date", on the bases that (a) Beeox did not undertake any electrical work, (b) the business Mr Sparke worked for (OneWaterNaturally) did not employ a licenced electrician, (c) Mr Sparke was not supervised apart from when a contractor was engaged and (d) "Mr Sparke is also the managing director of OneWaterNaturally and this is seen as a conflict of interest". 5On 29 February 2012, the Vocational Training Tribunal ordered that the apprenticeship be cancelled from its start date. Mr Sparke's appeal to the Vocational Training Appeal Panel was dismissed on 14 May 2012. 6From that decision an appeal lay to the Commission in Court Session, by leave: Apprenticeship and Traineeship Act 2001 (NSW) (AT Act), s 55(1). The scope of that "appeal" was broad; it amounted to a hearing de novo. Section 55(3) authorised the Commission to exercise any function that could have been exercised by the Appeal Panel. The (former) President of the Commission, Boland J, conducted a hearing over six days from 16 April until 14 August 2013. His Honour published reasons occupying 156 paragraphs on 22 August 2013: Sparke v Hay [2013] NSWIRComm 70. Although leave to appeal was granted, the appeal was dismissed but with no order as to costs. In the course of that hearing, fresh evidence, including by way of affidavits, was read and there appears to have been extensive cross-examination. 7Prominent in the complaints made by Mr Sparke in this Court was that the procedures adopted by the Vocational Training Tribunal and Appeal Panel were unfair or biased. The same submission was made to Boland J, who recorded at [33] that: "In my opinion, if there was any procedural unfairness or bias in the proceedings below it has been cured by the appellants having had a completely fresh opportunity to show there was compliance." 8In the course of the hearing, Boland J admitted into evidence the record of proceedings before the Vocational Training Tribunal and Appeal Panel, over Mr Sparke's objection. His Honour stated at [34] that "I have not relied on any of the findings below to support my findings on appeal." 9The last day of the hearing before Boland J was 14 August 2013. On 12 August 2013, an application by Mr Sparke, originally filed in the Commission on 26 June 2013 and amended on 19 July 2013, came before Staff J, who was informed that the appeal was currently part-heard before Boland J. Mr Sparke sought to challenge a variety of decisions, including the decision to cancel the apprenticeship contract, Boland J's admission into evidence of the record of the Tribunal and the Appeal Panel, and other interlocutory rulings made during the course of the proceedings. His Honour delivered an ex tempore judgment, whose substance was that there was no case shown to extend the time for an appeal in relation to the earlier decisions prior to the hearing before Boland J, that no error had been identified in the more recent interlocutory rulings (which did not require an extension of time), and that no appeal would lie as those proceedings were currently part-heard. (The orders made do not precisely reflect all aspects of the reasons, but no party took any point in that regard; to be fair, the precise nature of the application filed on 26 June 2013 is less than clear.) 10It should not be thought that the foregoing comprehensively summarises the litigation in the Industrial Relations Commission commenced by Mr Sparke following the termination of his apprenticeship. It does not. However, it is a sufficient description in order to explain the two proceedings which may be deemed to be proceedings in this Court and which are the subject of this judgment. 11First, by a document described as an "Application for Leave to Appeal and Appeal - Section 187" filed in the Commission on 12 September 2013, Mr Sparke and Beeox sought "leave to appeal and appeals pursuant to s 55(1) of the Apprenticeship and Traineeship Act 2001 (NSW)" from the orders of Boland J made on 22 August 2013. I shall call this the "first pending proceeding". 12Secondly, by application described as an "Application to Extend Time to Appeal - Section 189" filed in the Commission on 26 November 2013, Mr Sparke and Beeox sought leave to appeal and appealed from the orders of Staff J made on 12 August 2013. I shall call this the "second pending proceeding". 13Both those proceedings described the first respondent as "State Training Services, Mr Peter Hay, Training Coordinator and Commissioner's delegate", and the second respondent as the Vocational Training Appeal Panel. The second respondent is not a proper party to either appeal and should be removed. "State Training Services" appears to be a name used within the Department of Education and Communities; the better course is for the first respondent to be named as Mr Hay. 14Neither the first nor the second pending proceeding has been determined by the Commission. With effect from 20 December 2013, the Industrial Relations Amendment (Industrial Court) Act 2013 (NSW) (Amending Act) inserted a new Part 16 within Schedule 4 of the Industrial Relations Act 1996 (NSW) (IR Act). Clause 58 was, in part, a response to the retirement of the majority of judicial members of the Commission (see New South Wales Legislative Council, Parliamentary Debates (Hansard), 30 October 2013 at 24956 - 24957). Clause 58 is as follows: 58 Application of amendments to pending proceedings (1) Meaning of "pending proceedings" This clause applies in relation to proceedings before a Full Bench of the Commission in Court Session (pending proceedings) that were commenced (but not completed) by the Full Bench before the abolition day. (2) Heard or partly heard proceedings Pending proceedings that were heard, or partly heard, by a Full Bench of the Commission in Court Session before the abolition day may continue to be dealt with and determined by a Full Bench of the Commission in Court Session. (3) The provisions of this Act and any other legislation or law that would have applied to or in respect of proceedings referred to in subclause (2) had the amending Act not been enacted continue to apply to those proceedings. (4) Unheard proceedings The following provisions apply in respect of pending proceedings that had not commenced to be heard before the abolition day: (a) if the function of determining proceedings of the kind concerned becomes the function of the Supreme Court or the Court of Criminal Appeal on that day because of amendments made by the amending Act-the proceedings are taken, on and from that day, to have been commenced in the Supreme Court or the Court of Criminal Appeal (as the case requires) and may be heard and determined accordingly, (b) if the function of determining proceedings of the kind concerned becomes the function of the Commission other than in Court Session on that day because of amendments made by the amending Act-the proceedings are taken, on and from that day, to have been commenced in the Commission and may be heard and determined accordingly, (c) if the function of determining proceedings of the kind concerned becomes the function of the Commission in Court Session (constituted by a single judicial member) on that day because of amendments made by the amending Act-the proceedings are taken, on and from that day, to have been commenced in the Commission in Court Session and may be heard and determined by a single judicial member accordingly. (5) The provisions of this Act and any other legislation (as amended by the amending Act) apply to and in respect of proceedings referred to in subclause (4). (6) Definitions In this clause: abolition day means the day on which Schedule 1 [6] to the amending Act commences. amending Act means the Industrial Relations Amendment (Industrial Court) Act 2013. 15Both the first and second pending proceedings are "pending proceedings" within the meaning of cl 58. The parties were correct to concede as much. 16It will be seen that, within the class of "pending proceedings", cl 58 distinguishes between "heard or partly heard proceedings" and "unheard proceedings". Speaking generally, the former may continue to be dealt with and determined by a Full Bench of the Commission in Court Session under the now repealed regime. The latter are the subject of the deeming in cl 58(4): they are deemed to be proceedings commenced in a different court. The evident purpose was to avoid the waste of time and money of a new court hearing afresh what had already been heard, or partly heard, by a Full Bench of the Commission in Court Session. The Amending Act also inserted a new Chapter 7A into the IR Act which provided, relevantly, for appeals to the Supreme Court against decisions of the Commission in Court Session. 17The critical date as at which the status of the pending proceedings is to be determined - the "abolition day" - is 20 December 2013. 18It appears that both the first and second pending proceedings were listed for directions before Backman J in October or November 2013, pursuant to which the parties filed submissions on jurisdiction dated 19 November and 26 November 2013. Both pending proceedings were listed for a further hearing before Backman J on 18 December 2013, on which occasion her Honour advised that it was expected that the amending Act would be proclaimed two days later on 20 December 2013. The respondent submitted that the proceedings should be adjourned until the legislation was in force. Mr Sparke opposed this course. He said: "In respect of the impending legislation, it is not in our interests to seek an adjournment to await the passage of some legislation that might, in ordinary circumstances in the way it appears, cause us additional prejudice in relation to have these matters heard. These two appeals are currently on foot and should be dealt with appropriately under the existing legislation." 19Her Honour adjourned the proceedings until 24 January 2014. On that day her Honour delivered reasons helpfully summarising the procedural history of the pending proceedings, the change in legislation and directing that both proceedings be sent to the President with the view to dealing with them as "pending proceedings" in the Supreme Court: Sparke v State Training Services [2014] NSWIRComm 3. That has occurred. In light of s 48(2)(f) of the Supreme Court Act 1970 (NSW), the proceedings have been assigned to the Court of Appeal. Subsequently, a Judge of Appeal directed that both proceedings be listed before three judges, to deal with (a) issues arising under the transitional provisions deeming pending proceedings to be proceedings in this Court, (b) whether there was a right of appeal (subject to the grant of leave) having regard to s 55(4) of the AT Act, and (c) whether, if either proceeding was before this Court and there was an appeal, leave should be granted. Other aspects of the proceedings, including the merits of any appeal, were directed to be dealt with separately. I will address each of those issues in turn. Do the deeming provisions apply to the first and second pending proceedings? 20Contrary to Mr Sparke's submission, the second pending proceeding is plainly one which was neither heard nor partly heard by a Full Bench of the Commission in Court Session within the meaning of cl 58(2). The only things that happened prior to the abolition day were two directions hearings before a single judge of the Industrial Court, and the filing of submissions on jurisdiction. 21It follows that the second pending proceeding is deemed, by dint of cl 58(4)(a), to have been commenced in the Supreme Court and may be heard and determined accordingly. 22The position is much less clear in the case of the first pending proceeding. That application for leave to appeal was listed for hearing before a Full Bench on 27 September 2013. When the matter was called, the Bench was constituted by Haylen and Backman JJ. The presiding judge commenced: "I'm sorry for the delay but we seem to have mislaid a member. But we thought that we, having regard to the issue that was raised with the parties, we thought it would be appropriate today to deal with the jurisdictional issue." 23The respondents had served written submissions on jurisdiction on Mr Sparke that afternoon. After being advised of that, the presiding judge said: "Haylen J: We have had our deal of troubles today and I am keen to make sure that we resolve these issues about the appeal. What I propose to do is hear anything further the first respondent wants to say about the competency issue, question of jurisdiction and then I will have a discussion with Mr Sparke about how he might respond to the written document and any oral submissions." 24The respondents addressed in support of the proposition that there was no further right of appeal by reason of s 55(4). The presiding judge then returned to Mr Sparke: "Haylen J: Mr Sparke, I don't know if you have been able to follow the argument, but in very broad terms the issue that has been raised for debate is whether Justice Boland's decision must be the last decision, and there are no rights of appeal beyond that, and that is what we would normally call a question of statutory construction. It looks at s 55 of the Apprenticeship and Traineeship Act and, in particular, subs 4. Now I understand you are not aware that this debate was to take place today. Would you like the opportunity to put in written submissions about that issue?" 25Mr Sparke accepted that offer and directions for the filing of further submissions were made. The presiding judge made it clear that there would not be further oral argument: "Haylen J: We will adopt this timetable. The first respondent is to file further submissions by 4 October. Mr Sparke, you are to file your submissions by 11 October. My plan is that the Court would then deal with the issue in those written submissions. I would not be anticipating a further oral argument here. Are we all clear about that?" 26That confirmed what the presiding judge had said, candidly, to the parties about the need to determine the issue rapidly: "Haylen J: Mr Sparke, to put it in plain language, I will not be here beyond the end of October." 27Every Australian court has jurisdiction to determine whether it has the jurisdiction which a claimant has purportedly invoked: Khatri v Price [1999] FCA 1289; 95 FCR 287 at [15]; Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1999] FCA 1572; 94 FCR 384 at [18]. Moreover, the first duty of a court is to determine whether it has jurisdiction: see Zhang v Zemin [2010] NSWCA 255; 79 NSWLR 513 at [39]-[46]; Eberstaller v Poulos [2014] NSWCA 211 at [1] and [14]. 28Accordingly, the Commission had both authority, and an obligation, to decide whether the purported invocation of appellate jurisdiction by Mr Sparke and Beoox was valid. Plainly, it was to that issue that the hearing conducted on 27 September 2013, and the submissions supplied subsequently, were directed. Contrary to what was said in Sparke v State Training Service [2014] NSWIRComm 3 at [13], this was not "the mere giving of directions"; what occurred on 27 September 2013 was the hearing of an essential aspect of the exercise of the Commission's jurisdiction. Indeed, save for one matter, it would be clear that the first pending proceeding was one which was "heard, or partly heard, by a Full Bench of the Commission in Court Session" within the meaning of cl 58(2), with the result that the deeming in cl 58(4) would not apply. 29The qualification, which is also the explanation (it may be inferred) for the fact that the question which had been fully argued has not been resolved, is that s 156 of the IR Act provided: "Subject to section 155(2), a Full Bench of the Commission consists of at least three members who are constituted as a Full Bench by the President for the purposes of a proceeding." 30There was no question of s 155(2) (which dealt with the cancellation of the registration of industrial organisations) applying. The respondent contended that because the Bench which sat on 27 September was comprised of two judicial members only, the proceedings were a "nullity". It is not necessary to consider what that submission precisely amounts to, and whether it is correct, because it goes further than what is required to resolve the threshold question of this Court's jurisdiction. All that matters is whether the proceeding answers the description of one which was "heard, or partly heard, by a Full Bench of the Commission in Court Session before the abolition day" within the meaning of cl 58(2). That issue, in turn, comprises two sub-issues. The first is the juristic nature of what occurred on 27 September 2013, and the submissions subsequently filed. The second is as to the construction of cl 58(2). It is convenient to determine this issue by reference to the second. 31Clause 58(2) is a transitional provision. Its purpose is to avoid the need for a rehearing. In the present case, there has not been any "hearing by a Full Bench of the Commission in Court Session" which was properly constituted. True it is that there was a hearing before such a body purportedly constituted, but it is not disputed that that hearing did not comply with the law. There is no reason for cl 58(2) to apply to such a hearing. The hearing which occurred does not answer the natural meaning of the clause. Nor would its purpose be served, by giving it an extended meaning which included the purported hearing which occurred on 27 September 2013. That is because it is now clear that a further hearing will be required by a properly constituted body to determine the preliminary question of jurisdiction. 32It follows that the first pending proceeding is a proceeding which is taken, by cl 58(4)(a), to have been commenced in this Court. Is there a right of appeal (subject to leave)? 33It was common ground that leave was required if an appeal lay from the decisions of Boland J and Staff J: IR Act, s 188(1). The same is true of the newly created appellate jurisdiction in this Court: IR Act, s 403B. 34Section 55 of the AT Act, which confers the right of appeal (exercised by Mr Sparke) from a decision of the Appeal Panel, provides in subs (4): "The decision of the Commission is final and is to be given effect to as if it were the decision of the person or body in respect of whose decision, determination, action or failure to act the appeal has been made." 35Section 80 of that Act provides that in the event of any inconsistency between it and the IR Act, the former prevails to the extent of the inconsistency. The question is whether s 55(4) (impliedly) denies a right of appeal by leave conferred by the IR Act. That question may not be straightforward. On the one hand, s 55(4) is a specific provision in a statute given priority over the general appellate provisions in the IR Act. On the other hand, it does not clearly abrogate further appeals, and generally it may be accepted that where a statute confers jurisdiction upon an existing body, it takes the body as it finds it including such appeals as already exist. 36It is not necessary, for the reasons given below, to address this question, and, not least because there no submissions were received in opposition to those of the respondent on that issue, it is inappropriate to do so. Even if there were no right of appeal, there was still the purported invocation of an appellate jurisdiction by the filing of Mr Sparke's originating processes, and that is sufficient for there to be a pending proceeding. Putting the same point in other words, either the proceedings purportedly commenced by Mr Sparke were incompetent and liable to be dismissed as such, or else they were, subject to the grant of leave, sufficient to invoke an appellate jurisdiction. But either way, there was an invocation of the Commission's jurisdiction, and that body had jurisdiction to determine whether that purported invocation of jurisdiction was valid. Should there be a grant of leave to appeal? 37For the reasons already given, irrespective of whether or not an appeal lies with leave, there were still two pending proceedings which are deemed by cl 58(4)(a) to have been commenced in this Court. It is clear that each proceeding may be heard and determined accordingly. 38Either leave is required, or else there is no right of appeal at all. Assuming there is a right of appeal, there is no basis whatsoever for the grant of leave in either proceeding. Section 403B(2) obliges this Court to grant leave if the matter is of such public importance that, in the public interest, leave should be granted. There is no public interest in the determination of whether Beeox adequately supervised its controller's husband who was apprenticed to it. The dispute, although important to Mr and Mrs Sparke, is of no broader public importance. 39In the case of the first proceeding, Mr Sparke has demonstrated no error on the part of Boland J such as to warrant the grant of leave. Although (no differently from other occasions where a court or tribunal had decided against him) Mr Sparke has alleged that it was procedurally unfair and biased, there is no suggestion in the materials available to this Court, which included very lengthy written submissions, of those serious claims being founded in the evidence. He made further serious claims, illustrative of which was ground 8: "The complaint was brought for improper reasons without substantive evidence beyond supposition subsequent to the Apprentice being assaulted by staff of the Respondent parties where the complaint was part of the means to cover up the unlawful actions of the Respondent and subsequently having used a tribunal with a debauched and facilitating Chairperson intentionally acting unlawfully and inappropriately in the adducing of evidence including denying the parties natural justice in forming a determination that has been to all intents and purposes followed and condoned by the Commission a fair and reasonable finding and action of a superior Court." 40Having read the five single-spaced pages of grounds, and 33 pages of written submissions, and heard Mr Sparke in chief and in reply, it is plain that there is no evidence before this Court which comes close to substantiating the serious allegations he has made. 41The position is the same in respect of the second pending proceeding. There is no suggestion of error in principle in Staff J declining to extend time so as to revisit questions presently part-heard before another judicial member of the Commission. Mr Sparke asserted there was jurisdictional error in the judgment of Staff J and once again he made allegations of bias and prejudice. Once again there is no foundation in the materials for the serious allegations made by Mr Sparke. 42It is true that there is a difficulty in identifying the nature of the application made by Mr Sparke. In large measure it purported to be a further challenge to the decision of the Appeal Panel. However, it also included challenges to decisions made by Boland J. It was entirely open for Staff J to take the course that he did, treating it in substance as a challenge to the decision of the Appeal Panel. Conclusion and orders 43It follows that the position is this. In 2013, Mr Sparke and Beeox purported, twice, to invoke the appellate jurisdiction of the Commission by filing originating process with that body. The transitional provisions deem those proceedings to have been commenced in this Court. Either there is an appellate jurisdiction capable of being invoked, or else there is not. If there is, it is subject to the grant of leave. No basis whatsoever has been demonstrated for the grant of leave. It follows that both proceedings should be dismissed. 44Ordinarily costs would follow the event. However, I am conscious that Mr Sparke never intended to bring proceedings in this Court. He and Beeox are only in this Court because of a deeming provision in transitional provisions enacted after his proceedings had been commenced. The questions raised have not been free from difficulty, and part of that difficulty occurred, through no fault of Mr Sparke, by reason of what occurred on 27 September 2013 when the Full Bench was not properly constituted. Bearing in mind all those matters, I propose that there be no order as to costs. 45TOBIAS AJA: I agree with the orders proposed by Leeming JA for the reasons he has expressed. ********** 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. Decision last updated: 11 September 2014