Kim Hollingsworth v Commissioner of Police [2007] NSWIRComm 7 (8 February 2007)

Last Updated: 20 June 2007

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Kim Hollingsworth v Commissioner of Police [2007] NSWIRComm 7



FILE NUMBER(S): IRC 2074

HEARING DATE(S): 29 November 2006

DATE OF JUDGMENT: 8 February2007
PARTIES:
APPLICANT
Kim Hollingsworth

RESPONDENT
Commissioner of Police, NSW Police

CORAM: Walton J Vice-President Boland J Backman J


CATCHWORDS: Practice and procedure - Unfair dismissal - Application to vary reinstatement order - Notice of motion seeking to strike out application to vary - Whether Industrial Court has power to vary reinstatement order made by Commission in Court Session constituted under the Industrial Relations Act 1996 but which made the Reinstatement Order under the appeal powers of the 1996 Act according to the substantive law of the Industrial Relations Act 1991 - Whether s 43 of Interpretation Act 1987 provides an express source of power to vary the Reinstatement Order - Whether the Court has any implied power to re-open the Reinstatement Order - Approach to statutory interpretation - Privative provisions of 1996 Act - Held s 43 of Interpretation Act does not provide power to vary Reinstatement Order - Held no express or implied power to re-open Reinstatement Order

Unfair dismissal - Practice and Procedure - Application to vary reinstatement order - Notice of motion seeking to strike out application to vary - Whether Industrial Court has power to vary reinstatement order made by Commission in Court Session constituted under the Industrial Relations Act 1996 but which made the Reinstatement Order under the appeal powers of the 1996 Act according to the substantive law of the Industrial Relations Act 1991 - Whether s 43 of Interpretation Act 1987 provides an express source of power to vary the Reinstatement Order - Whether the Court has any implied power to re-open the Reinstatement Order - Approach to statutory interpretation - Privative provisions of 1996 Act - Held s 43 of Interpretation Act does not provide power to vary Reinstatement Order - Held no express or implied power to re-open Reinstatement Order

Courts and judges - Whether Industrial Court has power to vary reinstatement order made by Commission in Court Session constituted under the Industrial Relations Act 1996 but which made the Reinstatement Order under the appeal powers of the 1996 Act according to the substantive law of the Industrial Relations Act 1991 - Held no such power exists in this case

LEGAL REPRESENTATIVES

APPLICANT
Mr D Patch of counsel
Solicitor: Mr P Murphy
Paul Murphy & Associates
RESPONDENTS
Mr P M Kite SC with Mr D Chin of counsel
Solicitor: Ms M Kelly
Crown Solicitors Office

CASES CITED: Bailey v Marinoff (1971) 125 CLR 529
Commissioner of Police v Hollingsworth (1997) 77 IR 339
Commissioner of Police v Hollingsworth and Another (No 2)(1998) 84 IR 192
DJL v The Central Authority (2000) 201 CLR 226
D'Orta-Ekenaike v Victorian Legal Aid and Another (2005) 214 ALR 92
Eastern Sydney Area Health Service and Anor v Australian Salaried Medical Officers' Association (unreported, Matter No IRC 1496 of 1993, 24 August 1993)
Eastern Sydney Area Health Service and Anor v New South Wales Public Medical Officers' Association (unreported, Matter No IRC 1496 of 1993, 9 February 1995)
Fei v Director General, Department of Commerce [2006] NSWADT 165 (5 May 2006)
Gamser v The Nominal Defendant (1976) 136 CLR 145
General Steel Industries Inc v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125
GIO Australia Limited and Another v O’Donnell (1996) 70 IR 1
Grierson v The King (1938) 60 CLR 431
Hollingsworth v Commissioner of Police (No2) (1999) 47 NSWLR 151; 88 IR 282
Hollingsworth v Commissioner of Police (1998) 81 IR 276
Hollingsworth v Commissioner of Police, New South Wales Police Service (2005) 146 IR 285
Hollingsworth v Commissioner of Police, New South Wales Police Service [2004] NSWIRComm 364
Hollingsworth v Commissioner of Police, New South Wales Police Service [2004] NSW ADT 17
Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (2006) 154 IR 310
Majik Markets Pty Ltd v Brake & Service Centre Drummoyne Pty Ltd and Others (1991) 28 NSWLR 443
Ove Arup Pty Ltd v Industrial Court of NSW (2006) 149 IR 193
Ove Arup Pty Ltd v Workcover Authority (NSW) (Inspector Mansell) (2005) 141 IR 78
Police Association of New South Wales v Commissioner of Police (2002) 123 IR 301
Re St. Nazaire Co (1879) 12 Ch D 88
State Rail Authority of New South Wales v Codelfa Construction Proprietary Limited (1982) 150 CLR 29

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Industrial Relations Act 1991
Industrial Relations Act 1996
Industrial Relations Amendment Act 2005
Interpretation Act 1897
Interpretation Act 1987



JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

FULL BENCH

CORAM: WALTON J, VICE-PRESIDENT

BOLAND J

BACKMAN J


Thursday 8 February 2007


Matter No IRC 2074 of 2006

KIM HOLLINGSWORTH v COMMISSIONER OF POLICE

Application by Kim Hollingsworth for contempt by the Commissioner of Police, NSW Police for his refusal and/or failure to carry out the order of the Industrial Commission of New South Wales in Court Session made on 21 May 1999

JUDGMENT OF THE COURT
[2007] NSWIRComm 7

1 The Commissioner of Police has moved the Court to strike out an application by Kim Michelle Hollingsworth. The effect of Ms Hollingsworth's application, if granted, would be to have the Commissioner reinstate Ms Hollingsworth as a Student Police Officer or, in the alternative, re-employ Ms Hollingsworth "in an available and suitable position so that [Ms Hollingsworth] is able to complete the necessary academic and other training requirements necessary to qualify for consideration as appointment as a Probationary Constable".

2 The current proceedings are the latest in a long history of litigation between the parties. On 18 July 1995, after 8 weeks as a Student Police Officer, the Commissioner terminated Ms Hollingsworth's employment. On 21 May 1999, the Full Bench of the Industrial Relations Commission in Court Session (Wright J, President, Hungerford J; Peterson J dissenting) in Hollingsworth v Commissioner of Police (No2) (1999) 47 NSWLR 151; 88 IR 282 ("Hollingsworth (No 2)") made various orders including the variation of an order made by Connor C on 3 October 1997 to the following effect:

(1) paragraph 1 to read that Kim Michelle Hollingsworth is to be reinstated by the Commissioner of Police to her former position as a student police officer and to recommence her training with the next intake of police recruits after 21 May 1999; and

(2) paragraph 2 to read that the amount of $35,000.00 payable by the Commissioner of Police to Kim Michelle Hollingsworth be paid no later than 28 May 1999.

("the Reinstatement Order”).

3 It took four years for the proceedings to culminate in the Reinstatement Order; proceedings involving multiple appeals and a diversion to the Supreme Court on a question of jurisdiction (Commissioner of Police v Hollingsworth (1997) 77 IR 339; Hollingsworth v Commissioner of Police (1998) 81 IR 276; Commissioner of Police v Hollingsworth and Another (No 2) (1998) 84 IR 192; and, Hollingsworth (No 2)).

4 In the result, the Reinstatement Order was not given effect to in its terms, but instead the parties entered into an agreement, a summary of which is set out in Hollingsworth v Commissioner of Police, New South Wales Police Service (2005) 146 IR 285. Under this agreement, the Commissioner of Police would pay Ms Hollingsworth certain amounts so as to enable her to complete the Diploma of Policing Practice Course required to satisfy the academic requirements for employment as a Probationary Constable with NSW Police in lieu of reinstating her as a student police officer. This agreement was entered into on the basis that the position of Student Police Officer had been abolished by the time the Reinstatement Order was made.
5 Approximately two years after the agreement was executed and after Ms Hollingsworth had started the Diploma course three times but had not completed it, Ms Hollingsworth commenced proceedings in the Industrial Relations Commission in Court Session to have declared rights under the agreement and the continuance of the Reinstatement Order. By consent, these proceedings were discontinued in early 2006 after Ms Hollingsworth had successfully challenged an interlocutory decision of Marks J in that matter (Hollingsworth v Commissioner of Police, New South Wales Police Service [2004] NSWIRComm 364; Hollingsworth v Commissioner of Police, New South Wales Police Service (2005) 146 IR 285).

6 There have also been proceedings before the Administrative Decisions Tribunal arising from Ms Hollingsworth’s attendance at the Diploma course (Hollingsworth v Commissioner of Police, New South Wales Police Service [2004] NSW ADT 17). Ms Hollingsworth made allegations of sexual harassment and sexual discrimination as an employee and named certain police officers. Whilst the tribunal dismissed Ms Hollingsworth's complaints on 28 January 2004, the tribunal was satisfied, on the balance of probabilities, that some of the alleged instances of harassment did occur constituting a contravention of s 22F of the Anti-Discrimination Act 1977, however the NSW Police Service was not liable for those acts under the relevant provisions of the Act. The complaint against the Vice-Chancellor was settled by a deed of release dated 8 October 2002.

7 On 30 January 2006, Ms Hollingsworth sought an order that the Commissioner of Police was in contempt of the "Commission" because of his refusal and/or failure to carry out the Reinstatement Order. The applicant also sought alternative relief in the same motion. (Those proceedings were commenced by Notice of Motion in the earlier declaratory proceedings, before the Industrial Relations Commission in Court Session, but allocated a new matter number, being the matter number in the present proceedings) The relief sought included penalties, reinstatement or re-employment, compensation and interest.

8 On 10 August 2006, orders were made by consent dismissing the claims relating to contempt. On 16 August, Ms Hollingsworth filed an application by Notice of Motion which effectively superseded any remaining aspect of the Motion filed on 30 January. That Motion before the Industrial Court of NSW (being the present matter number) is the subject of an application by the Commissioner of Police to strike out the proceedings. This decision concerns that strike out application. The application sought by Ms Hollingsworth was for the following orders:

"4. The order made by Connor C on 3 October 1997 in Matter No. IRC 2827 of 1995 is varied in the following respects:

(a) Paragraph 1 to read:

1. That Kim Michelle Hollingsworth is to be re-instated by the Commissioner of Police to her former position as a Student Police Officer on the following terms and conditions:

(i) The Applicant and the Respondent are to enter into a contract of employment.

(ii) The terms and conditions of employment in that contract are to incorporate the provision of the Crown Employees (Student Police Officers) Award as it was immediately prior to its rescission on 23 June 2004.

(iii) The Terms and Conditions of that contract shall include a clause that requires the Respondent to take all reasonable steps to ensure that the Applicant is admitted as a student of Charles Sturt University studying for the Associate Degree of Policing Practice, and to take all reasonable steps to assist the Applicant to gain such admission.

(iv) The Terms and Conditions of that contract shall include a clause that requires the Respondent to take all reasonable steps to assist the Applicant to complete the academic and other training requirements necessary to qualify for consideration for appointment as a Probationary Constable.

(v) The Terms and Conditions of that contract shall include a clause that requires the Applicant to be diligent in completing the academic and other training requirements necessary to qualify for consideration for appointment as a Probationary Constable.

b. The Respondent pay to the Applicant a sum equivalent to the amount that the Applicant would have earnt as a Student Police Officer, if she had been employed in that position on 21 May 1999, until the date of her reinstatement, LESS monies paid to the applicant as allowance pursuant to the agreement between the Applicant and the Respondent made 24 August 1999, and LESS monies paid to the Applicant pursuant to the orders of the Court made 21 May 1999.

c. The Respondent pay to the Applicant interest on the amount payable in accordance with sub-paragraph b. above, calculated at the rate specified from time to time for unpaid judgments in the Supreme Court of New South Wales."

In the alternative to the above order:

2. That paragraph 4 of the orders made by the Industrial Relations Commission of New South Wales in Court Session made 21 May 1999 (reported at 88 IR 282) be amended so as the read:

"4. The order made by Connor C on October 1997 in Matter No. IRC 2827 of 1995 is varied in the following respects:

a. Paragraph 1 to read:

(i) The Respondent is to re-employ the Applicant in an available and suitable position so that the applicant is able to complete the necessary academic and other training requirements necessary to qualify for consideration as appointment as a Probationary Constable.

(ii) The Applicant and the Respondent are to enter into a contract of employment.

(iii) The Terms and Conditions of that contract shall include a clause that requires the Respondent to take all reasonable steps to ensure that the Applicant is admitted as a Student of Charles Sturt University studying for the Associate Degree of Policing Practice, and to take all reasonable steps to assist the Applicant to gain such admission.

(iv) The Terms and Conditions of that contract shall include a clause that requires the Respondent to take all reasonable steps to assist the Applicant to complete the academic and other training requirements necessary to qualify for consideration for appointment as a Probationary Constable.

(v) The Terms and Conditions of that contract shall include a clause that requires the Applicant to be diligent in completing the academic and other training requirements necessary to qualify for consideration for appointment as a Probationary Constable.

b. The Respondent pay to the Applicant a sum equivalent to the amount that the Applicant would have earnt as a Student Police Officer, if she had been employed in that position on 21 May 1999, until the date of her reinstatement, LESS monies paid to the applicant as allowance pursuant to the agreement between the Applicant and the Respondent made 24 August 1999, and LESS monies paid to the Applicant pursuant to the orders of the Court made 21 May 1999.

c. The Respondent pay to the Applicant interest on the amount payable in accordance with sub-paragraph (b) above, calculated at the rate specified from time to time for unpaid judgments in the Supreme Court of New South Wales."

9 On 23 August, the Commissioner filed his notice of motion seeking to strike out Ms Hollingsworth's application. The grounds and reasons in support were as follows:

1. The Applicant does not have standing to seek the relief sought under the Industrial Relations Act 1996 ("the 1996 Act") or the Industrial Relations Act 1991 ("the 1991 Act").

2. The Industrial Court of New South Wales established under the 1991 Act was abolished on the repeal of the 1991 Act [clause 23 (1) of Schedule 4 to the 1996 Act].

3. In making order 4 in its decision of 21 May 1999 in Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282, this Honourable Court exercised the powers contained in subsections (3) and (4) of section 297 of the 1991 Act that enabled it to exercise the functions of the Full Bench of the Industrial Relations Commission of New South Wales.

4. Having exercised the powers contained in subsections (3) and (4) of section 297 of the 1991 Act, this Honourable Court is functus officio in so far as the proceedings the subject of its decision of 21 May 1999 are concerned.

5. Except in so far as the Industrial Relations Commission of New South Wales has jurisdiction to rescind order 4 in this Honourable Court's decision of 21 May 1999 in Hollingsworth v Commissioner of Police (No 2), section 179 (1) of the 1996 Act provides that the said order may not be reviewed by any court or tribunal.

Issues for determination


10 The Police Commissioner's strike-out application raises two issues for determination:

(1) Whether s 43 of the Interpretation Act 1987 provides an express source of power to vary the Reinstatement Order.

(2) Whether the Court has any implied power to re-open the Reinstatement Order.

11 Whilst the power to strike out proceedings should only be exercised in plain and obvious cases (see General Steel Industries Inc v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125) and whilst the Commissioner of Police has to demonstrate that no order could be made which would be within jurisdiction, the two issues for determination are purely stand-alone jurisdictional issues and no question of fact arises. Moreover, the two issues have been fully addressed by the parties in their submissions and it appears to have been accepted that the appropriate course is for the Court to address the issues separately from the substantive proceedings. If the Police Commissioner is successful it will "save the costs and inconvenience that attend a protracted hearing of proceedings on the merits": Majik Markets Pty Ltd v Brake & Service Centre Drummoyne Pty Ltd and Others (1991) 28 NSWLR 443 per Kirby P at 446.

12 Before dealing with these two issues, however, there is one threshold matter that needs to be resolved. We inquired of counsel for both parties what view they took as to the statute under which the Full Bench in Hollingsworth (No 2) exercised its power to make the Reinstatement Order and, further, whether this Court was the legal successor to the Full Bench that made the Reinstatement Order.

13 The answer to the inquiry lies in the history of the proceedings, the genesis of which arose in December 1995 when Ms Hollingsworth commenced proceedings under s 246 of the Industrial Relations Act 1991 Act alleging that her dismissal was harsh, unreasonable or unjust and seeking reinstatement. Mr Hollingsworth had been dismissed on the basis that the Police Commissioner had taken the view that Ms Hollingsworth had dishonestly omitted information from her application for employment concerning previous employment as a stripper and prostitute. Whilst Ms Hollingsworth's application was filed some four months late, Connor C exercised his discretion under s 246(3) to allow her application to proceed to a hearing on the merits.

14 Connor C heard Ms Hollingsworth’s application in two phases: first, as to whether the dismissal was harsh, unreasonable or unjust and second, as to what relief should be granted. In a decision given on 3 April 1997 (unreported, Matter No IRC 2827 of 1995), Commissioner Connor found that Ms Hollingsworth's dismissal on 18 July 1995 was harsh, unconscionable or unjust under s 246(1) of the 1991 Act. In a second decision given on 3 October 1997 (unreported, Matter No IRC 2827 of 1995), Connor C made the following orders:

1. The New South Wales Police Service shall reinstate Ms Hollingsworth to her former position as student police officer to recommence her training with the next intake of police recruits in November, 1997.

2. The Police Service shall pay to Ms Hollingsworth the sum of $35.000.00 within 28 days.

3. This order shall take effect on and from Friday, 3 October 1997.

15 From each of Commissioner Connor's decisions, the Police Commissioner appealed under ss 187 and 188 of the 1996 Act (Commissioner of Police v Hollingsworth (1997) 77 IR 339). The Full Bench of the Commission overturned the decisions at first instance and in doing so held that the law applicable was that under which the application was heard, that is, the 1991 Act.

16 Ms Hollingsworth then appealed to the Full Bench of the Commission in Court Session established under the 1996 Act on a question of law (Hollingsworth v Commissioner of Police (1998) 81 IR 276). The Commissioner of Police challenged the competency of the appeal. As Hungerford J observed at 292:

Here, however, the direct issue involves the very existence of a right of appeal, whether by leave or otherwise, and the constitution of a tribunal under the 1996 Act jurisdictionally competent to deal with the appeal as filed.

17 By majority (Hill and Hungerford JJ, Peterson J dissenting) the Full Bench of the Commission in Court Session held the appeal was competent. In separate judgments Hill J and Hungerford J found that the right of appeal that Ms Hollingsworth had under the 1991 Act was not affected by the 1996 Act. Hill J concluded:

In any event, once it is established, and I believe it is on the authorities, that the 1996 Act does not manifest a clear intention to operate retrospectively to abolish or affect the rights or liabilities of parties in, inter alia, matters in relation to which proceedings had been instituted and which were part heard under the 1991 Act as at 2 September 1996, then any literal deficiencies in the savings provisions of the 1996 Act are, in my opinion, remedied by the common law presumption against the retrospective operation of statutes and s30 of the Interpretation Act in the context that the 1996 Commission is the successor to the 1991 Commission and the Court is the successor to the Industrial Court.

Accordingly, in my opinion, the present appeal is competent since the right of appeal was one which existed in the appellant, albeit conditionally or contingently, prior to the repeal of the 1991 Act. The respondent should pay the costs of the appellant of and incidental to the preliminary point.

18 The Commissioner of Police then filed a summons in the New South Wales Court of Appeal claiming an order that the decision of the Industrial Relations Commission in Court Session of 26 June 1998, to the effect that it had jurisdiction to hear an appeal by Ms Hollingsworth against the decision of the Full Bench given on 22 December 1997, be quashed and set aside and an order that the Industrial Relations Commission in Court Session be prohibited from hearing or otherwise dealing with the purported appeal or, alternatively, a declaration that it did not have jurisdiction to hear and determine the purported appeal. In a unanimous decision (Commissioner of Police v Hollingsworth and Another (No2) (1998) 84 IR 192) the Court of Appeal dismissed the summons. Sheller JA (with whom Priestley and Stein JJA agreed) quoted with approval (at 200) the following passage in GIO Australia Limited and Another v O’Donnell (1996) 70 IR 1 at 14:

In our opinion, the intention and effect of cl 41(2) [of Schedule 4, Savings, transitional and other provisions of the 1996 Act] is to vest jurisdiction in the new Court or Commission to make an order, under the 1996 Act, determining a matter commenced, but not determined, under the 1991 Act. This is subject to the proviso that there is a provision of the 1996 Act which corresponds to the provision of the 1991 Act under which the order is sought to be made. That proviso makes it clear that the matter (subject to the qualification it imposes) is to be determined under the substantive law of the 1991 Act. If the intention of the clause was to apply the substantive law of the 1996 Act to all undetermined applications for orders under the 1991 Act then the proviso would be superfluous.

19 At 203-204 Sheller JA stated:

I am not persuaded that there was any error in the conclusion Hill and Hungerford JJ reached. The detailed review made on more than one occasion by the Industrial Commission convinces me that despite many apparent inconsistencies in the language of the transitional provisions, the legislature did not intend to abolish by the 1996 Act existing rights of appeal in applications for relief under Pt 8 of Ch 3 of the 1991 Act, the hearing of which had begun in the former 1991 Act Commission but had not been determined when the 1996 Act came into force. Indeed, as the Full Bench thought in Capital Painters & Decorators Pty Ltd, the effect of cl 17 may be that in the case of unfair dismissal proceedings it is sufficient that the application has been made. However, it is not necessary to decide this in the present case. I think the 1996 Act appeal structure enables this right of appeal to be preserved by permitting an appeal as of right from the Full Bench of the 1996 Commission to the 1996 Commission in Court Session in reliance upon the right of appeal found in s 383 of the 1991 Act on a question of law.

Some support for this conclusion is found in the approach taken by the Full Bench of the 1996 Commission and both parties on the Commissioner of Police's appeal from Commissioner Connor to the Full Bench. All were agreed that the appeal was brought in reliance on an existing right under the 1991 Act which had not been abolished or abrogated. Accordingly, the Commission and the parties agreed that the appeal could be brought in reliance on s383 of the 1991 Act as of right and not under ss187 and 188 of the 1996 Act which would have required the granting of leave.

20 Then followed the decision of the Full Bench in Hollingsworth (No 2) where, as we earlier noted, the majority held that Ms Hollingsworth had been unfairly dismissed and that she should be reinstated as a student police officer and allowed to continue her training.

21 On the basis of this history both parties agreed that in Hollingsworth (No 2) the Reinstatement Order was made by a Full Bench of the Industrial Relations Commission in Court Session ("the 1996 Commission in Court Session") as established on 2 September 1996 under the Industrial Relations Act 1996.

22 It was also agreed that the Industrial Court of New South Wales is the same body, albeit differently named, as the 1996 Commission in Court Session. The name change was effected by the Industrial Relations Amendment Act 2005. The second reading speech was made on behalf of the responsible minister by the Member for Swansea on 17 November 2005. At p 20010 it was stated:

The bill also makes two other amendments. It enables the commission, in exceptional circumstances, to accept an application in relation to an alleged unfair contract that is made out of time, and changes the name of the Industrial Commission in Court Session to the Industrial Court of New South Wales.

...

The bill also amends the Industrial Relations Act to change the title of the Industrial Relations Commission in Court Session to the Industrial Relations Court of New South Wales. The Industrial Relations Commission of New South Wales consists of both judicial and non-judicial members. Both types of members can exercise the arbitration powers of the commission, but only the Commission in Court Session, which is constituted by one or more judicial members, can exercise the judicial functions of the commission. These judicial functions include the hearing of unfair contract applications, prosecution of offences against the Act, proceedings for breach of industrial instruments, appeals against decisions of inferior courts in industrial matters, and prosecution of occupational health and safety offences under the Occupational Health and Safety Act 2000.

Section 152 of the Act provides that the Commission in Court Session is a court of superior record and is of equivalent status to the Supreme Court and the Land and Environment Court. The title "Commission in Court Session" may cause some confusion in the public mind about the status and powers of this body. This is particularly significant in the area of occupational health and safety. The Commission in Court Session deals with prosecutions for occupational health and safety offences, some of which have a serious impact on the health and safety of workers and which may result in severe penalties being imposed.

The criminal nature of these proceedings is sometimes lost on those who do not understand that the proceedings are being dealt with by a court, because the judicial body is generally referred to as the commission. The bill, therefore, amends the Act to provide that the Commission in Court Session should be referred to and known as the Industrial Court of New South Wales. The only change will be to the name or title of the body; there will be no variation to the way in which the court and commission interrelate, or to how the functions of each are allocated under the Act. I commend the bill to the House.

23 We have considered the history of this matter and supplementary written submissions of the parties on the questions raised by the Full Bench and we accept that:

(1) The Industrial Court of New South Wales, despite the change in name, is relevantly the same body as the Industrial Relations Commission of New South Wales in Court Session as established on 2 September 1996 under the Industrial Relations Act 1996;

(2) The orders that are the subject of Ms Hollingsworth's amended motion filed on 16 August 2006 (see Hollingsworth v Commissioner of Police (No 2) 47 NSWLR at 216-217; 88 IR at 345) were orders of the Industrial Relations Commission of New South Wales in Court Session as established under the 1996 Act;

24 The Commissioner of Police also submitted that pursuant to clause 41(2) of the transitional provisions of the 1996 Act in Schedule 4, the Reinstatement Order was made by the 1996 Commission in Court Session in the exercise of its powers under the 1996 Act, albeit according to the substantive law of the 1991 Act: see Commissioner of Police v Hollingsworth and Another (No 2) (1998) 84 IR 192 at 204 per Sheller JA). It therefore appeared, according to counsel for the Commissioner, that in making the orders it did in Hollingsworth (No 2) the 1996 Commission in Court Session purported to exercise its appeal powers under the 1996 Act in accordance with the substantive law of the 1991 Act. It followed, according to counsel for the Commissioner, that this Court’s power to re-open the Reinstatement Order must be found in the 1996 Act rather than the 1991 Act. Counsel for Ms Hollingsworth, in his written supplementary questions, does not appear to have directly addressed this issue.

25 We agree with the submissions of counsel for the Police Commissioner that the orders made by the 1996 Commission in Court Session in Hollingsworth (No 2) were orders made under the appeal powers of the 1996 Act according to the substantive law of the 1991 Act. We consider this is clear from what the Full Bench in GIO Australia Ltd v O’Donnell said about cl 41(2) of Schedule 4 to the 1996 Act at 14 and endorsed by Sheller JA. Clause 41(2) is in the following terms:

(2) Any application for an order made under the 1991 Act and not determined immediately before the repeal of that Act is to continue to be dealt with as if made under this Act (but only if there is a corresponding provision of this Act under which the order could be made).

26 Subject to the question of the applicability of s 43 of the Interpretation Act, which we will come to next, it follows that, as the Reinstatement Order in Hollingsworth (No 2) was made under the 1996 Act (albeit according to the substantive law of the 1991 Act), any power that this Court possesses to re-open the Reinstatement Order must be found in the 1996 Act.
Section 43 of the Interpretation Act


27 Section 43 of the Interpretation Act provides:

43 (1) If an Act confers a power on any person or body to make a statutory rule, the power includes power to amend or repeal any statutory rule made in the exercise of that power.

(2) If an Act or statutory rule confers a power on any person or body to make an order (whether or not the order must be in writing), the power includes power to amend or repeal any order made in the exercise of that power.

(3) If the power of a person or body to make a statutory rule or order is exercisable only on the recommendation, or with the approval or consent, of some other person or body, the power to amend or repeal a statutory rule or order made in the exercise of that power is exercisable only on the recommendation, or with the approval or consent, of that other person or body.

Ms Hollingsworth relied, in particular, on s 43(2).

28 Counsel for Ms Hollingsworth submitted the grant of power under s 43(2) was clear and unambiguous. Reference was made to two authorities said to support the use of s 43(2) to vary the Reinstatement Order, namely, Eastern Sydney Area Health Service and another v New South Wales Public Medical Officers' Association (unreported, Maidment J, Matter No 1496 of 1993, 24 August 1993) and Fei v Director General, Department of Commerce [2006] NSWADT 165 (5 May 2006). In the former case Maidment J found that the Commission had the power, under s 43(2), to rescind a reinstatement order that had been made by the Commission in 1988. His Honour said, at 4 of the unreported judgment:

Section 43 (2) of the Interpretation Act, however, would seem to me to be applicable in this case. The section is unambivalent and, in the context of an order made under the 1991 Act, which the subject order is taken to be, I am unaware of any inconsistency, as between the two statutes, which might operate against s 43(2) being afforded its full scope in circumstances such as the present.

29 In Fei it was stated:

10 Sub-section 2 of section 43 of the Interpretation Act, when read literally, is in sufficiently broad terms to encompass an order made by the Tribunal under the Tribunal Act. There is, however, a question as to whether section 43 (2) does not apply to an order made by a court or tribunal as it is not a body appointed under an act or statutory rule to make an order. The term "body" is not defined. When regard is had to the definition of statutory rule in section 21A of the Interpretation Act and also to the provisions of section 78 of that Act which relates to rules of court, some support can be gained for the argument that those provisions indicate that the powers of amending a statutory rule contained in sub-section 1 of section 43, operate only in relation to statutory rules made by a subservient body but not to rules made by a court or tribunal as such. It may be argued that sub-section 2 of the section 43, when it relates to the repeal of an order of a body should also be constrained in its application in a similar manner.

11 On the other hand, section 79 of the Interpretation Act which relates to the authority to administer oaths by any person or body, is not constrained by an application to a subservient body and, within its terms, could readily operate to refer to the authority of courts and tribunals to administer oaths in the conduct of hearings.

12 In considering this question of the power of the Tribunal to repeal an order made under the Tribunal Act, in principle there seems no good reason for the Tribunal not to have power to repeal an order, especially an order under section 71, where the circumstances have sufficiently altered such that, in the case of an incapacitated person, the incapacity has ceased and would no longer prevent the person representing him or herself before the Tribunal. It is the view of the Tribunal that sub-section 2 of section 43 of the Interpretation Act should be read such that it would enable the Tribunal to have power to revoke an order made under section 71 of the Tribunal Act. That sub-section should not be read in a constraining way but rather full effect should be given to the meaning of the words in the sub-section. The Tribunal came to the conclusion that the order made by the Tribunal on 14 April 2005, by applying sub-section 2 of section 43 of the Interpretation Act, could be repealed if the applicant could satisfy the Tribunal that he had regained the capacity to overcome the impairment which previously had been certified as preventing him from adequately representing himself in the proceedings. The Tribunal accordingly granted the applicant an adjournment to enable him to obtain medical evidence to support his application for the repeal of the order.

30 A useful statement on the relevant principles and approach to be taken to statutory interpretation is contained in the judgment of Wright J, President in Police Association of New South Wales v Commissioner of Police (2002) 123 IR 301 at [41]-[47]. It is unnecessary to repeat all that his Honour said in that judgment except to refer to a number of the authorities cited at [41] and [42]:

41 Although the relevant principles of construction may be thought to be somewhat trite, it may be appropriate nevertheless, in view of the issues between the parties, to refer to the major principles and also the approach which should be adopted because of the way in which the issues are posed in the present proceedings. The first of the general principles is usefully stated in the joint judgment of Isaacs and Rich JJ in Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449 at 455 where their Honours said:

[E]very passage in a document must be read, not as if it were entirely divorced from its context, but as part of the whole instrument.

See also Scott v Federal Commissioner of Taxation (1966) 117 CLR 514 at 524 and K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 where Mason J observed:

However, to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, at pp 304, 319 - 320; Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436, at pp 461, 473). Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise. In Prince Ernest Augustus of Hanover, Viscount Simonds said (at p 461):

“... words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense ... as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.”

In Re Bidie [1948] 2 All ER 995, at p 998 Lord Greene M.R. said:

"In the present case, if I might respectfully make a criticism of the learned judge's method of approach, I think he attributed too much force to what I may call the abstract or unconditioned meaning of the word 'representation'. ... The real question which we have to decide is: What does the word mean in the context in which we find it here, both in the immediate context of the sub-section in which the word occurs and in the general context of the Act, having regard to the declared intention of the Act and the obvious evil that it is designed to remedy?"

The instances of general words in a statute being so held to be constrained by their context are legion: e.g. Ross v The Queen (1979) 141 CLR 432, at p 440 and the cases collected in Cross, Statutory Interpretation (1976), pp 44 - 56 (emphasis added by Wright J).

42 Also, as Dixon CJ observed in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397:

[T]he context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.

31 In considering the context in which s 43 appears in the Interpretation Act, the first thing to note is that it is in Part 6 - Statutory Rules and Other Instruments. That Part deals with: Making of statutory rules; Notice of statutory rules to be tabled; Disallowance of statutory rules; Matters for which statutory rules may make provision; Implied power to amend or repeal statutory rules and orders (s 43); Presumption of validity of certain instruments; and, Tabling of instruments. We take the view that the meaning of the word "order" in s 43 is constrained by the context in which it appears in Part 6. That Part is concerned with subordinate or delegated legislation and the term "order" must be interpreted in that light. That is to say, the orders referred to in Part 6 belong to the same genus as ordinances, regulations, by-laws and rules of court. The orders referred to in Part 6 are not orders of a court. This conclusion is supported by the following considerations:

(1) Nowhere in the Interpretation Act does it refer to orders made by a court except in Schedule 3 - Savings and transitional provisions, where cl 7 merely provides:

(1) Section 13A, as inserted by the Interpretation Amendment Act 2006, is taken to have applied to any Act in force before the commencement of that section (and to have applied on and from the enactment of any such Act).

(2) Nothing in subclause (1) affects any judgment or other order of a court or tribunal given or made before the commencement of that section.

(3) In particular, the Roads and Traffic Authority is bound by the Landlord and Tenant (Amendment) Act 1948 in relation to the property located at 67 Cromwell Street, Croydon Park for so long as that property is leased by that Authority to Mrs Jill McNamara (being the appellant in the appeal to the High Court in McNamara (McGrath) v Consumer Trader and Tenancy Tribunal [2005] HCA 55 (29 September 2005)).

The absence in the substantive provisions of the Act to any reference to orders of a court, or reference to orders that could reasonably be construed as judicial orders, makes it unlikely that the reference to orders in s 43, which is a reference made in the context of subordinate or delegated legislation, is the sole reference to judicial orders.

(2) Repealed legislation may aid in the interpretation of the overall intention of an Act. See the authorities cited in Pearce and Geddes, Statutory Interpretation in Australia, 5th ed, at 74. The predecessor provision to s 43 in the Interpretation Act 1897 provided:

32 Powers conferred by Acts

(I) Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised, and the duty shall be performed, from time to time, as occasion requires.

(II) Where an Act gives power to any officers or persons to make any rules, by-laws, orders, or regulations, it shall be implied that such officers or persons may rescind, revoke, alter, or vary the same from time to time as occasion requires.

It may be seen that the reference to "orders" was squarely in the context of other subordinate or delegated legislation. Nothing in the Explanatory Note relating to the Interpretation Bill 1986 (a Bill to, inter alia, repeal the Interpretation Act 1897) suggests that there was any parliamentary intention to extend the meaning of orders in cl 43 of the Bill (s 43 of the 1987 Act) to orders made by a court.

(3) The language used in s 43(2), which includes the words "amend or repeal any order" is not language usually associated with judicial orders.

32 In D'Orta-Ekenaike v Victorian Legal Aid and Another (2005) 214 ALR 92 Gleeson CJ, Gummow, Hayne and Heydon JJ observed at [35]-[36]:

A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry (DJL v Central Authority (2000) 201 CLR 226) and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud (DJL at [35]-[38]). The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding (see, for example, (Hoysted v Federal Commissioner of Taxation (1925) 37 CLR 290; [1926] AC 155; Blair v Curran (1939) 62 CLR 464; Jackson v Goldsmith (1950) 81 CLR 446; Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353). It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 389.

The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature (Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73) and availability of appeals, rules about what points may be taken on appeal (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; O'Brien v Komesaroff (1982) 150 CLR 310; Coulton v Holcombe (1986) 162 CLR 1) and rules about when further evidence may be called in an appeal (in particular, the so-called "fresh evidence rule" (Orr v Holmes (1948) 76 CLR 632; Ratten v The Queen (1974) 131 CLR 510 at 516-517 per Barwick CJ; Gallagher v The Queen (1986) 160 CLR 392; Mickelberg v The Queen (1989)167 CLR 259) are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe (1986) 162 CLR 1 at 7 "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial".

33 It would be an extraordinary outcome, and entirely inconsistent with over 120 years of judicial authority (see Re St. Nazaire Co (1879) 12 Ch D 88) regarding the finality of litigation, for it to be accepted that in reliance of s 43 of the Interpretation Act a court may re-visit an order that has been formally entered or perfected for the purpose of considering whether the court should "amend or repeal" the order. See Ove Arup Pty Ltd v WorkCover Authority (NSW) (Inspector Mansell) (2005) 141 IR 78 and the authorities referred to at [12] to [23] including: Grierson v The King (1938) 60 CLR 43; Bailey v Marinoff (1971) 125 CLR 529; Gamser v The Nominal Defendant (1976) 136 CLR 145; DJL v The Central Authority (2000) 201 CLR 226 (the decision in Ove Arup was challenged in the Court of Appeal, however, the challenge was dismissed: Ove Arup Pty Ltd v Industrial Court of NSW (2006) 149 IR 193).

34 Section 5(2) of the Interpretation Act provides:

(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.

35 Here, the Act concerned is the Industrial Relations Act. In our opinion, the manifest intention of that Act is to preclude the Court from reviewing, varying or setting aside an order it has made that has been formally entered or perfected, except in the limited circumstances prescribed by the Act and the Commission's Rules. An order will be formally entered or perfected in the circumstance described by the Full Bench in Ove Arup at [26]:

26 The practice in relation to judgments and orders made by the Commission in Court Session is that a written judgment is prepared that also contains any orders to be made. The orders are normally pronounced on the day of judgment and the parties are immediately provided with a written copy of the judgment and orders. No further steps are taken to formally enter the judgment in records of the Court. In this respect, pronouncement and entry may be said to occur simultaneously, entry having been made in the written judgment and by its delivery in open court. We consider this is the established practice for the purposes of r 89 of the Commission's Rules and, accordingly, the practice, procedure or usage of the Supreme Court, Court of Appeal or Court of Criminal Appeal referred to in r 89(5) of the Commission's Rules in respect of entry of judgments and orders is not applicable.

36 The circumstances in which a judicial order may be amended or set aside arise under s 170 of the Act, which provides:

(1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.

(2) Any such amendment may be made:

(a) at any stage of the proceedings, and

(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).

(3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.

(4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.

37 Further, r 151 of the Industrial Relations Commission Rules 1996 provides:

151 Minute of judgment or order

(1) Where there is a mistake in an order or decision, arising from an accidental slip or omission, a tribunal, on application by any party or of its own motion, may at any time correct the mistake or error.

(2) A tribunal, on application by any party or of its own motion, may, at any time, for the purpose of carrying out its intention and to express accurately its meaning, correct any order or decision.

(3) The power in this Rule is additional to the power in Rule 38.

38 Rule 38 provides:

38 Correction of orders or awards

(1) The Registrar may publish in the Industrial Gazette any correction which is necessary by reason of a clerical or printing error in an order or award as published.

(2) Where there is a mistake in an order or award, arising from an accidental slip or omission, the tribunal, on application by any party or of its own motion, may at any time correct the mistake or error.

(3) A tribunal, on application by any party or of its own motion may, at any time, for the purpose of carrying out its intention and to express accurately its meaning, correct any order or award.

39 Neither the Act nor the Rules of the Commission provide for any express power to the Court, as distinct from the Commission, to amend or set aside an order other than those we have identified in the preceding three paragraphs. Whilst s 170(1) provides that the Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice, and such amendments may be made at any stage of the proceedings (s 170(2)(a)), s 170 does not grant power to amend proceedings once an order has been made disposing of those proceedings. What Barwick CJ stated in Bailey v Marinoff at 530 with respect to the New South Wales Court of Appeal applies equally to this Court, in our opinion:

Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.

40 The Reinstatement Order was made and entered by delivery of a written judgment on 21 May 1999: Hollingsworth (No 2) at 154 and 216-217; 282 and 345. The Reinstatement Order was thus perfected on 21 May 1999: Ove Arup at [31].

41 If Parliament had intended that this Court (however constituted) should have a power at large to re-open decisions for the purpose of amending or rescinding final orders, it seems to us it would need to have expressed that intention in the clearest possible terms and not by some obscure reference to orders in a Part of the Interpretation Act dealing with subordinate or delegated legislation.

42 Moreover, Part 7 of Chapter 4 of the Act provides a comprehensive regime for appeals and references. If the Court (however constituted) was at large to "amend or repeal" a perfected order, the effect would be to subvert the system of appeals and references provided for by the Act.

43 It was contended by the Commissioner of Police that s 179 of the Industrial Relations Act also expressed a contrary intention to the Court having the power to "amend or repeal" an order. Section 179 is a privative provision in the following terms:

179 Finality of decisions

(1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal.

(2) Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by any court or tribunal.

(3) This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law.

(4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of:

(a) the Full Bench of the Commission in Court Session, or

(b) the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision.

(5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise.

(6) This section is subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law.

(7) In this section:

decision includes any award or order.

44 Counsel for Ms Hollingsworth submitted that s 179 was not directed to the issue of the re-opening of a decision by the decision-maker but rather, according to the terms of the section, it was directed at limiting the circumstances in which decisions of the Commission may be appealed against, reviewed, quashed or called into question by any court or tribunal other than the original decision-maker. Whilst it is not necessary to come to a concluded view regarding this submission we consider it is probably correct. Nevertheless, the reference to decisions (which includes an order) of the Commission being final, subject to the exceptions provided for in the section (and the other exceptions we have identified), would tend to support the view that once formally entered an order is not to be re-opened for the purpose of amending (other than by way of correction) or rescinding it.

45 Counsel for Ms Hollingsworth relied on two decisions where the tribunals employed s 43 to, in one case apparently, rescind a reinstatement order and in the other case to "repeal" an order made pursuant to s 71(1) of the Administrative Decisions Tribunal Act 1997. In the first case (Eastern Sydney Area Health Service and Anor v Australian Salaried Medical Officers' Association) Maidment J, sitting as the Industrial Court under the 1991 Act considered that s 43(2) of the Interpretation Act provided power to the Court in that case to rescind a reinstatement order made pursuant to Ch 3, Pt 8 of the 1991 Act. His Honour considered that s 43(2) was "unambivalent" (sic) and no inconsistency existed between the Interpretation Act and the 1991 Act. His Honour, however, for reasons that are not clear, did not proceed to make the rescission order.

46 In a later judgment of Cahill V-P, in Eastern Sydney Area Health Service and Anor v New South Wales Public Medical Officers' Association (unreported, Matter No IRC 1496 of 1993, 9 February 1995), apparently sitting as the Commission, his Honour rescinded the reinstatement order that was the subject of the proceedings before Maidment J. It appears that Cahill V-P accepted the finding of Maidment J that there was jurisdiction to make the rescission order and it would seem, although it is not clear, that his Honour accepted that the basis of the power to make the order was s 43(2) of the Interpretation Act.

47 It is not apparent from either the judgment of Maidment J or that of Cahill V-P, that there was any substantive consideration of s 43(2) as a source of power to make the rescission order. In any event, if it were the case that s 43(2) was the jurisdictional foundation for making the order, we respectfully disagree on the basis that s 43(2) is not concerned with orders of a judicial nature made by a court or tribunal.

48 The other judgment relied upon by counsel for Ms Hollingsworth was Fei. Whilst the Tribunal in that case decided that s 43(2) provided the basis for making an order "repealing" a representative order made under s 71(1) of the Administrative Decisions Tribunal Act, it does not appear that the Tribunal had the benefit of an opposing view. However, for the reasons given in relation to the other two judgments relied upon by Ms Hollingsworth, we do not agree with the decision in Fei.

49 We find that s 43(2) of the Interpretation Act is not a source of power to vary the Reinstatement Order.

Implied power to re-open Reinstatement Order

50 The second limb of Ms Hollingsworth's contentions was that the Court has an implied power to re-open the Reinstatement Order for the purpose of varying that Order. This submission was based on the proposition that the Court is a court of last resort and it is appropriate for the Court to re-open the Reinstatement Order, and to vary it in the manner sought, in order to avoid an "irremediable injustice": State Rail Authority of New South Wales v Codelfa Construction Proprietary Limited (1982) 150 CLR 29 at 38; Ove Arup at [36]-[37]. We note that both parties proceeded upon the basis that we would determine only the question of a power to re-open to avoid an "irremediable justice". The question of whether any such injustice arose was left to be determined, if the Commission found such a power existed, at a later stage of the proceedings.

51 In Ove Arup the Full Bench considered whether there existed either exceptional circumstances or an irremediable injustice warranting re-opening of the appeal proceedings on the assumption that the Court was a court of last resort. At [35]-[37] the Full Bench stated:

35 Given the terms of s 179, a Full Bench of the Commission in Court Session might readily be regarded as a court of last resort subject only to a challenge under the Hickman principle laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 especially at 614-615: see Mitchforce v Industrial Relations Commission and Ors (2002) 57 NSWLR 212; 124 IR 79. In other words, judicial review of any decision of a Full Bench of this Court will be ousted if the requirements of the Hickman principle are met. As Gaudron and Gummow JJ stated in Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 at 634:

However and provided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it satisfies the Hickman principle.

36 It may be arguable, therefore, this Court is a court of last resort and thus, despite the strength of the statements in Grierson and Bailey v Marinoff to the effect that once an order disposing of a proceeding has been perfected that proceeding (apart from any specific and relevant statutory provision) is at an end in that court and is beyond recall by that court, in order to avoid an "irremediable injustice", circumstances may render it appropriate for a Full Bench of this Court to re-open proceedings: Codelfa at 38.

37 In the light of the provisions of s 179 ( Handley JA in Mitchforce at [204] remarked that it was the widest privative clause he had seen), we intend to deal with the issues raised in these proceedings on the basis that this Court is a court of last resort (although we recognise that there remains an issue about that matter in light of the Hickman principle). In those circumstances, we shall proceed to determine, in the exercise of our discretion, whether the circumstances of this matter are sufficiently exceptional so as to warrant re-opening of the appeal proceedings. In doing so, we are cognisant of the fact that the High Court in DJL has left open the question as to whether even a court of last resort had the discretion to re-open a perfected judgment.

52 The Full Bench in Ove Arup subsequently held that neither exceptional circumstances nor an irremediable injustice existed. As we earlier noted, however, the Full Bench also found that in respect of appeals to intermediate courts, such courts have no power to re-open perfected judgments or orders disposing of proceedings unless such power is provided by statutory provisions or allowed by one of the stated limited exceptions (see at [22]).

53 In DJL at 246-247 the High Court (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Kirby J contra) stated:

The reference to s 93A(2) has a further significance for the present appeal. In CDJ v VAJ it was decided that the existence and content of the power of the Full Court of the Family Court to receive "further evidence" turned upon the construction of the Family Law Act. The issues which arose were not to be decided by some general inquiry as to the position of "intermediate courts of appeal". Nor were they to be decided by reference to what had been said in this Court in cases concerned with the procedure of the common law courts. McHugh, Gummow and Callinan JJ said ((1998) 72 ALJR 1548 at 1563; 157 ALR 686 at 706-707):

"The principles laid down in Wollongong Corporation v Cowan (1955) 93 CLR 435 and the similar appeal in McCann v Parsons (1954) 93 CLR 418 are to be understood by reference to the procedures of the common law courts. Those cases have nothing authoritative to say about the admissibility of further evidence in respect of a statutory power to admit evidence on appeal. They came before this Court on appeal from judgments of the Full Court of the Supreme Court of New South Wales on motions for a new trial in accordance with s 160 of the Common Law Procedure Act 1899 (NSW), after verdicts given by juries in the trial of common law actions for damages. Accordingly, the principles with respect to the allowance of a motion for a new trial on the ground of discovery of fresh evidence which were propounded by this Court in Wollongong Corporation and McCann were informed by the position in the English common law courts. In those cases, this Court was not concerned with the terms of any modern statute expressly conferring upon an appellate court a power to receive additional evidence. To regard Wollongong Corporation and McCann as defining the jurisdiction or controlling the discretion to admit evidence in statutory appeals is erroneous."

Likewise, in the present litigation, clarity of thought and the isolation of the true issues have not been encouraged by submissions expressed in general terms respecting the position in "intermediate courts of appeal". In the case of each such court, State or federal, attention must be given to the text of the governing statutes and any express or implied powers to be seen therein. Nor is it of assistance to consider the position with respect to this Court in the exercise of its entrenched jurisdiction as a court of final appeal under s 73 of the Constitution, or with respect to the Privy Council or the House of Lords after R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272; [1999] 1 All ER 577, a decision referred to by the Solicitor-General of the Commonwealth.

In DJL the High Court held that the Full Court of the Family Court did not have power to re-open final orders after their entry.

54 As we have already found, the 1996 Act provides no express conferral of a power to re-open a final order in the circumstances that apply in these proceedings. Nor, as the Court also found in DJL in respect of the Family Court, 'is there an inherent power by reason of the description in the statute creating the court of it as "a superior court of record"': see also Ove Arup at [33]. Nor does this matter fall within one of the limited class of exceptions where a re-opening may be permitted.

55 The question arises whether, by necessary implication, s 179 of the 1996 Act confers power on this Court to re-open in the manner contended for.

56 The terms of s 179 at the time of the proceedings in Ove Arup (January/February 2005) were different to what they are now (see the terms of the current provision cited earlier in this judgment). At the time of Ove Arup s 179 was in the following terms:

179 Finality of decisions

(1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted):

(a) is final, and

(b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise).

(2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted.

(3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission.

57 It was on the basis of this earlier version of s 179 that the Full Bench in Ove Arup proceeded on the assumption that the Court was a court of last resort in that it was assumed for the purpose of addressing an alleged "irremediable injustice" that the Full Bench had power to re-open after entry of final orders.

58 The terms of s 179, as they presently exist, make it clear that the Full Bench of the Court may not be regarded as a court of last resort with respect to a “purported decision ... on an issue of jurisdiction”. Such decisions are reviewable. That is to say, a purported decision by the Full Bench on an issue of jurisdiction does not produce a final judgment of this Court that forecloses the re-opening of the matter: see Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) (2006) 154 IR 310 at [28]-[50] per Spigelman CJ. This situation does not apply with respect to matters before the Commission as opposed to the Court, but as we have earlier noted, whilst this matter has an industrial aspect it is, due to the history of the matter, squarely before the Industrial Court and thereby attracts the provisions of s 179 (4).

Conclusion

59 It follows that this Court has no express or implied power under the Industrial Relations Act 1996 to re-open the orders made by the Commission in Court Session in Hollingsworth (No 2).

60 We note that no submission as to costs were made in the proceedings and we, therefore, shall make directions to deal with any issue in that respect. In raising this matter we should not be taken as indicating a view that costs are available in these proceedings. We propose to deal with any such application on the papers unless a party requests an oral hearing or our considered view of the written submissions requires us to take that course.

61 Save as to the question of costs, we consider that these proceedings are now concluded. If Ms Hollingsworth brings any further proceedings then any such process should be initiated by a fresh application.

Orders

62 The Court makes the following order:

(1) That the notice of motion filed by Kim Michelle Hollingsworth on 16 August 2006 in Matter No IRC 2074 of 2006 is dismissed.

(2) The Commissioner shall make any application for costs and file and serve any submission in support thereof on or before 22 February 2007. Ms Hollingsworth shall file and serve any submissions in reply on or before 8 March 2007.

LAST UPDATED: 2 August 2007