WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2007 WAIRC 00334

DELIVERED : WEDNESDAY, 4 APRIL 2007

FILE NO. : FBA 44 OF 2006

Appellant

AND

Leslie Bruce Clarke

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner P E Scott

Citation : 2006 WAIRC 05711/(2006) 86 WAIG 3241

File No : B 173 OF 2006

CatchWords:

Industrial Law (WA) - Application to Supreme Court for writ of certiorari against a decision of the Commission - Appeal to Full Bench against decision of the Commission instituted concurrently - Correspondence between appellant and the Commission regarding discontinuance of appeal after certiorari granted - Whether Full Bench has power to discontinue an appeal - Practice of the Commission Registry.

Industrial Law (WA) - Submissions made to Supreme Court in support of certiorari - Filing of a submitting appearance by a Commissioner of the Commission - Whether appropriate for Commissioner to appear - Issue of whether Commission has jurisdiction despite amendments to the Workplace Relations Act 1996 (Cth) - Duty of Commission to decide whether or not it has jurisdiction - Appeal against orders where Commissioner's jurisdiction disputed because of the Workplace Relations Act 1996 (Cth) - Appeal dismissed.

Legislation:

Industrial Relations Act 1979 (WA) (as amended), s7, s12, s27(1)(a), s29(1)(b)(ii), s34(3), s35(4), s49(4), s49(5)(a), s90

Workplace Relations Act 1996 (Cth), s4, s5, s6, s16

Industrial Relations Commission Regulations 2005, r16, r102(10)

Judiciary Act 1903 (Cth), s40, s78B

Workplace Relations Regulations 2006, r1.2(1), (2), (4)

Result:

Appeal dismissed.

Case(s) referred to in reasons:

ALHMWU v Home Care Transport Pty Ltd (2002) 117 FCR 87

BGC Contracting Pty Ltd v The CFMEU [2004] FCA 417

Brian Rochford Ltd (Administrator Appointed) v Textile Clothing and Footwear Union of NSW (1998) 85 IR 332

CFMEU v Perrott (2002) 83 WAIG 17

Chapman v Chapman [1983] 2 NSWLR 420

City of Mandurah v Hull (2000) 100 IR 406

CTS Ltd v Australian Broadcasting Authority (No 2) [2004] FCA 614

Enright v Sleepeezee Pty Ltd (2004) 84 WAIG 305

FCU v George Moss Ltd (1990) 70 WAIG 3040

Gwenda May Smith v Albany Esplanade Pty Ltd t/as the Esplanade Hotel (2007) 87 WAIG 508

Helm v Hansley Holdings Pty Ltd (In liq) (1999) 118 IR 126

Lawrence v Aboriginal Legal Service of Western Australia Inc (2006) WAIRC 05849

Mineralogy Pty Ltd v National Native Title Tribunal and Others (1997) 150 ALR 467

MUSU v Sherriff [2004] VSC 266

Phillips v TR7 Pty Ltd (2006) 86 WAIG 2646

R v Blakely and Others; ex parte The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54

R v Heagney and Another; ex parte ACT Employers Federation and Others (1976) 137 CLR 86

R v Judges of the Federal Court of Australia and Another; ex parte The Western Australian National Football League (Inc) and Another (1979) 143 CLR 190

R v The Australian Broadcasting Tribunal and Others; ex parte Hardiman and Others (1980) 144 CLR 13

Re Carey; Ex Parte Exclude Holdings Pty Ltd and Others [2006] WASCA 219

Re Gillies Contracting Pty Ltd (in liq); Khatri v Price and Another (1999) 166 ALR 380

Re Inquiry into matters relating to the availability of work at Tristar Steering and Suspension Australia Ltd [2007] NSW IR Comm 50

Re S and the Adoption Act 2000 (NSW) [2005] NSWSC 1346

Richardson v Pipunya Pty Ltd (1999) 79 WAIG 1459

Springdale Comfort Pty Ltd v BTAUWA (1986) 67 WAIG 325

Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of NSW [2007] FCA 348; [2007] FCA 407

TXU Electricity Ltd v The Office of the Regulator-General and Others (2001) 3 VR 93

Case(s) also cited:

BHP Billiton Iron Ore Pty Ltd v AMWU [2006] FCA 1181; BC200606776

Custom Credit Corp Ltd v Lupi [1992] 1 VR 99

New South Wales v Commonwealth of Australia (2006) 231 ALR 1; (2006) 156 IR 1

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

TXU Electricity Limited v The Office of the Regulator General and Ors [2001] VSC 4

Reasons for Decision

THE FULL BENCH

Introduction

1          This appeal was commenced by the filing of a notice of appeal on 22 December 2006.  It was an appeal against a decision of the Commission constituted by Commissioner Scott given on 4 December 2006 in matter number B 173 of 2006.  The grounds of appeal were contained in an attached schedule which set out six grounds.  None of the grounds asserted that the Commissioner at first instance lacked the jurisdiction to hear and determine the application before it. 

2          The appeal is presently before the Full Bench because on 14 February 2007 the appellant’s solicitors filed a document entitled “Notice of withdrawal or discontinuance” (the notice of discontinuance).  The terms of that document will later be explained.  As will also be explained, it is appropriate to make an order that the appeal be dismissed, based on the notice. 

3          It is also necessary, in the view of the Full Bench, to set out and make some observations about the course of the proceedings since the filing of the notice of appeal.  The facts set out have been obtained from documents on the Commission file of the Full Bench and from information provided by the appellant’s solicitors. 

4          The respondent’s claim at first instance was for the payment of amounts which he asserted he was entitled to but had not received under his contract of employment, upon his retrenchment.  It was a claim referred to the Commission under s29 of the Industrial Relations Act 1979 (WA) (the Act). 

The Application at First Instance

5          As stated, the orders which were appealed against were made by Commissioner Scott on 4 December 2006.  The orders made were:-

“1. THAT the name of the Respondent be amended to Crown Scientific Pty Ltd.

2. THAT the Respondent shall pay to Leslie Bruce Clark the amount of $62,414.32 less taxation, such payment to be made forthwith.

3. THAT the Respondent shall pay into a complying superannuation fund to be nominated by Leslie Bruce Clark within 7 days, the amount of $4,513.96.”

6          On 3 November 2006 Commissioner Scott had published reasons for decision.  In the heading to these reasons it was stated that the application had been heard on 10 April 2006, 16 June 2006 and 25 August 2006.  At the hearing the then applicant (current respondent) had been represented by counsel and the current appellant (former respondent) was represented by an agent. 

7          The reasons of Commissioner Scott disclosed that the present respondent had been employed with the appellant from August 1987.  The reasons of Commissioner Scott do not set out when the respondent was retrenched.  From a perusal of the reasons, however, the fact of the retrenchment was not in dispute, only the contractual benefits which the respondent was entitled to. 

FBA 41 of 2006

8          Prior to the filing of the notice of appeal referred to earlier, the appellant filed another notice of appeal which was given by the Commission the number FBA 41 of 2006.  This appeal was commenced by the appellant when still represented by the agent. 

9          The appellant’s present solicitors were instructed by the appellant on 14 December 2006.  On 22 December 2006 the appellant’s solicitors advised the Commission registry they wished to withdraw or discontinue FBA 41 of 2006.  As set out earlier this was also the date on which the present appeal was commenced. 

Supreme Court Application 2400 of 2006

10       Also on 22 December 2006 the present appellant, as applicant, commenced Supreme Court proceedings which were given the application number CIV No 2400 of 2006.  (For ease of reference we will refer to the Supreme Court application as simply “action 2400/2006”).  In that application there were two respondents.  The second respondent was the respondent to this appeal.  The first respondent was named as “Commissioner P E Scott of the Western Australian Industrial Relations Commission”. 

11       Action 2400/2006 was for a writ of certiorari said to be against both respondents.  The following orders were sought in the application:-

“1. That the respondents do show cause before the Court in Court or chambers or before the Court of Appeal, as the Judge making the order shall think fit, why a writ of certiorari should not be issued to remove into this Court for the purposes of being quashed the first respondent’s decision dated 4 December 2006 …

2. Further, or alternatively to 1 above, there be a referral to the Court in Court or chambers or before the Court of Appeal, as the Judge making the order shall think fit, of an application by the applicant for declarations to the effect stated in paragraph 5 below.

3. That pursuant to Order 56 Rule 5(2) the order nisi for certiorari is hereby directed to operate as a stay of the first respondent’s decision dated 4 December 2006 pending the determination of the application for a writ of certiorari or until further order.

4. Such other orders as this Honourable Court sees fit.”

12       Paragraph [1] was completed by “based on the grounds set out in paragraph 5 below”.  Paragraph [5] set out the basis on which it was claimed the first respondent exceeded her jurisdiction; essentially because the present appellant was a constitutional corporation for the purposes of the Workplace Relations Act 1996 (Cth) (the WRA). 

Communications with the Commission

13       On 22 December 2006, a solicitor from the firm representing the appellant attended at the registry of the Commission to serve action 2400/2006.  This document was received by the registry of the Commission for and on behalf of Commissioner Scott as the named first respondent.  As stated, on the same date, and perhaps at the same time, the present appeal was filed.  A date stamp on the notice of appeal shows that document was filed at 3:30pm on 22 December 2006. 

14       The solicitor who attended at the registry advised that the present appeal had been filed as a precaution.  The solicitor requested that any hearing of the Full Bench consequent upon the filing of the appeal be deferred pending the determination of action 2400/2006. 

15       Acting on advice from the registry the appellant’s solicitors also wrote a letter to the attention of the “Acting President’s Associate” dated 22 December 2006 which was received by the Commission on the same day.  The heading of the letter was “Crown Scientific Pty Ltd v Leslie Bruce Clarke FBA 41 of 2006”.  The letter said:-

“The above appeal against the decision of Commissioner PE Scott in matter number B173 of 2006 was incorrectly filed prior to the delivery of the decision on 4 December 2006.

Crown Scientific wishes to withdraw the above appeal and is today filing fresh proceedings.

Notwithstanding the filing of the new proceedings, which have been filed as a precaution, Crown Scientific considers that from 27 March 2006 as a consequence of section 16 of the Workplace Relations Act 1996, the Commissioner lacked jurisdiction to continue to hear and determine the matter.  This argument, if correct, would also mean that a Full Bench would lack jurisdiction to entertain an appeal.  Accordingly, Crown Scientific has also applied to the Supreme Court for a writ of certiorari.

We enclose a copy of the application by Crown Scientific to the Supreme Court dated 22 December 2006 and request that any hearing of the appeal proceedings initiated today be deferred pending the determination of the Supreme Court application.”

16       At the bottom of the letter was typed “cc:”, and then there was typed the name and address of the respondent’s solicitor/counsel at first instance. 

17       On 3 January 2007 the appellant’s solicitors filed appeal books, in the present appeal, at the registry of the Commission.  When the appeal books were filed they were accompanied by a letter again addressed to the “Acting President’s Associate”.  This letter was also dated 3 January 2007.  The letter said that the appeal books were enclosed, in accordance with regulation 102(10) of the Industrial Relations Commission Regulations 2005 (the Regulations).  The letter also said that the solicitors were giving notice that on the hearing of the appeal, “the appellant will seek leave to amend the notice of appeal to include the following”.  There was then set out a variation to the order which was sought on the appeal, from that which was contained in the notice of appeal.  Again, the letter had typed on it “cc:” and the name of the respondent’s solicitor/counsel. 

18       On the same date, that is 3 January 2007, a notice of discontinuance was filed in FBA 41 of 2006.  As a result of this, registry staff at the Commission, in accordance with a long held practice, administratively closed the file. 

19       On 11 January 2007 a solicitor from the firm representing the appellant spoke to a registry officer of the Commission by telephone and advised that action 2400/2006 had been listed for hearing in Supreme Court chambers on 24 January 2007.  On 24 January 2007 Master Newnes listed the action for hearing by a Master at a special appointment on 8 February 2007. 

20       On 29 January 2007 the appellant’s solicitors sent a letter to a deputy registrar of the Commission confirming that action 2400/2006 would now be heard before Master Newnes of the Supreme Court at 2:15pm on Thursday, 8 February 2007. 

Court Documents in Action 2400/2006

21       On 5 February 2007 the appellant’s solicitors sent a letter to the same deputy registrar which enclosed, with respect to action 2400/2006:-

(a) A copy of a memorandum pursuant to order 59 rule 9 of the Rules of the Supreme Court, dated 2 February 2007 (the memorandum). 

(b) A copy of the applicant’s outline of submissions, dated 2 February 2007 (the written submissions). 

(c) A copy of the applicant’s list of authorities. 

22       In the memorandum it was stated that the “first respondent has indicated that it will submit to such order as the Court may make”.  Although this sentence was not grammatically correct given Commissioner Scott was the named first respondent, it is correct that there had been a submitting appearance filed in the Supreme Court on behalf of the first respondent to action 2400/2006. 

23       In the same document under the heading “Hearing” it was stated that “The applicant will move the Court at the Special Appointment listed for 8 February 2007 to grant an order absolute in the first instance for a writ of Certiorari, pursuant to Order 56 r 1(6) and to, by the same order, pursuant to Order 56 r 13, direct that the decision of the first respondent be quashed on the return without further order”. 

24       The written submissions contained 30 paragraphs.  At the end of the document was the name of counsel, indicating that counsel had prepared the outline of submissions.  Above the place where counsel’s name was typed, there is what appears to be the signature of a solicitor from the firm representing the applicant to action 2400/2006 and the word “per” written in hand. 

25       The Full Bench was later advised that the written submissions were, as represented in the document, prepared by counsel.  The Full Bench was also later advised that counsel had become involved between 6 and 8 December 2006.  This was before the appellant’s solicitors were engaged.  It is also apparent that counsel was retained by the solicitors both in this appeal and action 2400/2006. 

26       In paragraphs [7] – [15], the written submissions set out “The case for relief”.  These paragraphs, omitting footnotes, are as follows:-

“7. The decision made by the first respondent on 4 December 2006 was made in excess of jurisdiction.

8. The Claim was referred to the Commission, pursuant to s29(1)(b)(ii) of the IR Act, on 3 March 2006.  The first respondent, purporting to exercise jurisdiction under s23(1) of the IR Act, heard the matter on 25 August 2006 and 24 November 2006 before issuing her decision on 4 December 2006: [the affidavit of a solicitor was then cited]

9. The applicant, against whom the Claim was brought, was at all material times a trading corporation, within the meaning of the Constitution [the affidavits of a solicitor and the Operations Director of the appellant were then cited] and therefore a constitutional corporation, within the meaning of section 4(1), and an employer, within the meaning of section 6(1)(a), of the WR Act.

10. The IR Act is a “State or Territory industrial law” within the meaning of section 4(1) of the WR Act.

11. Subsection 16(1) of the Workplace Relations Act 1996 (Cth) (WR Act) provides that the WR Act applies to the exclusion of a State or Territory industrial law so far as it would otherwise apply in relation to an employer as defined in s6(1).

12. Section 16 of the WR Act was inserted by Schedule 1 of the Workplace Relations Amendment (Work Choices) Act 2005 which commenced on 27 March 2006 (the day fixed by proclamation).

13. Section 16 of the WR Act is effective in excluding State industrial laws even though in some respects, such as the enforcement of contractual entitlements, the Commonwealth has failed to enact any corresponding Federal law.  It is enough that the Commonwealth Parliament has indicated the relevant field it intends to cover to the exclusion of State law, in this case relations between constitutional corporations and their employees: New South Wales v Commonwealth of Australia (2006) 231 ALR 1; (2006) 156 IR 1 at [367]-[372].

14. Accordingly, from 27 March 2006, by reason of section 16 of the WR Act and s109 of the Commonwealth Constitution, the IR Act, with prescribed exceptions, was excluded insofar as it would otherwise have applied to constitutional corporations and their employees.

15. The Claim did not fall within any of the prescribed exceptions so that, from 27 March 2006, the first respondent lacked jurisdiction to continue to hear and determine the matter.”

27       In paragraph [16] of the written submissions, it was contended that although the present issue was not raised during the Commission proceedings, as it was one which went to jurisdiction and could not have been cured at the hearing, the applicant was not precluded from taking the point in action 2400/2006. 

28       In the next paragraph it was submitted that as a consequence of the “IR Act” being excluded in its application to constitutional corporations and their employees, the privative clause in s34(3) of the Act did not apply. 

29       The submissions then contained the heading “Discretionary considerations”, which comprised paragraphs [18] – [23].  These paragraphs are as follows:-

“18. The starting point in the consideration of the exercise of discretion is that if it is found the tribunal exceeded its jurisdiction, certiorari will normally be granted: Re Carey; Ex Parte Exclude Holdings Pty Ltd and Ors [2006] WASCA 219; BC 200608660 at [129] per Martin CJ (Wheeler JA agreeing); see also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [51]-[52] per Gaudron and Gummow JJ (Gleeson CJ agreeing) and at [149] per Kirby J where their Honours approved the following statement by Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185:

“If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course.”

19. Here there are no discretionary reasons for withholding relief.

20. There is no other equally efficacious remedy available to the applicant.

21. As a consequence of the IR Act being excluded in its application to constitutional corporations and their employees, the applicant cannot appeal to a Full Bench of the Commission under s49 of the IR Act.

22. Whereas, under s853 of the WR Act, an appeal lies to the Federal Court from a judgment of a state “court” in any matter arising under the WR ACT (sic), whether the Commission is a court for this purpose is an open question: see BHP Billiton Iron Ore Pty Ltd v AMWU [2006] FCA 1181; BC200606776 at [23] to [24].

23. On the other hand in circumstances where:

(a) There is a clear case for relief;

(b) The second respondent consents to the proposed orders;

(c) The first respondent has filed a submitting appearance;

the making of an order absolute in the first instance is necessary for the advancement of justice to avoid wasted costs and delay.”

30       The written submissions concluded with submissions about, in the alternative, granting an order nisi and a stay, and a statement that the applicant and second respondent had agreed there be no order as to costs. 

31       It is noted that in paragraph [20] of the written submissions it was stated that there “is no other equally efficacious remedy available to the applicant.”.  Moreover, in paragraph [21] it was submitted that “the applicant cannot appeal to a Full Bench of the Commission under s49 of the IR Act”. 

32       The written submissions did not disclose that appeals FBA 41 of 2006 and FBA 44 of 2006 had been filed or that FBA 44 of 2006 was then pending before the Full Bench.  It is also noted however that none of the grounds of appeal in FBA 44 of 2006 referred to the jurisdictional issue which was the subject of action 2400/2006, and that the Commission had been advised that the appeal filed was “precautionary”.  On the other hand, the availability of an appeal is an important discretionary factor in the granting of a writ of certiorari.  (See Re Carey; Ex Parte Exclude Holdings Pty Ltd and Others [2006] WASCA 219 per Martin CJ (Wheeler JA agreeing) at [133] – [142]). 

33       There was on the face of the documents seen by the Full Bench nothing which would have prevented counsel from informing the Supreme Court that this appeal had been filed with the Commission.  The court could have been told the appeal was filed as a precaution, the grounds did not (at least as yet) argue the Commission at first instance lacked jurisdiction and that in the submission of counsel, the fact of the pending appeal did not affect another submission of counsel, that there was a lack of jurisdiction for the Full Bench to hear an appeal. 

34       It is also noted that the written submissions said “the first respondent has filed a submitting appearance” and this was one of the three circumstances listed in paragraph [23] which supported the submission that “the making of an order absolute in the first instance is necessary …”. 

Certiorari Granted and Communications with the Commission

35       The appellant’s solicitors by letter dated 8 February 2007 to a deputy registrar of the Commission stated that action 2400/2006 was heard by Master Newnes of the Supreme Court on 8 February 2007.  The letter stated that orders were made in the terms of an attached minute.  The letter also said that an extracted order and writ of certiorari would be served on the Commission and the necessary papers filed to discontinue appeal FBA 44 of 2006. 

36       The minute of proposed order attached to the letter dated 8 February 2007 had the following substantive paragraphs:-

“1. A writ of certiorari be issued directing the first respondent to remove into this Honourable Court for the purpose of being quashed the decision made by her on the 4th day of December 2006.

2. The decision made by the first respondent on the 4th day of December 2006 be quashed on the return without further order.

3. There be no order as to costs.”

37       On 14 February 2007 the appellant’s solicitors provided by hand to a deputy registrar of the Commission a letter and by way of service the extracted orders and writ of certiorari in action 2400/2006. 

38       The order absolute for writ of certiorari was signed by a registrar on behalf of the Supreme Court and dated 13 February 2007.  The order was in the same terms as the minute quoted earlier. 

39       The writ of certiorari was headed “Writ of Certiorari (General) issued pursuant to an order of Master Newnes dated 8 February 2007” and dated 12 February 2007.

40       Following an enquiry by a deputy registrar of the Commission, the solicitors for the appellant wrote a letter dated 14 February 2007 which advised that Master Newnes did not publish reasons for decision on 8 February 2007.  The letter stated the “order was made by consent and on the basis of the applicant’s written and oral submissions.  The Master simply indicated that he was persuaded and made the orders accordingly.”.  The letter also advised that the associate to Master Newnes had confirmed the Master did not intend to publish written reasons. 

41       The Commission subsequently obtained from the Supreme Court a copy of the transcript of the hearing before Master Newnes on 8 February 2007.  The transcript, of some 3½ pages, shows that the matter was heard between 2:18 and 2:27pm on 8 February 2007.  Counsel who had prepared the written submissions appeared for the applicant.  The transcript shows there was no mention of either FBA 41 of 2006 or FBA 44 of 2006 in the hearing. 

42       On 13 February 2007 a solicitor from the firm of solicitors representing the appellant telephoned a registry officer at the Commission to advise that consequent upon the outcome of action 2400/2006, the appellant did not wish to proceed with FBA 44 of 2006.  The registry officer informed the solicitor that because the file had not as yet been (formally) forwarded to the Acting President’s Chambers, the file was able to be administratively closed.  We use the word “formally”, as it was apparent from the correspondence referred to above that the Acting President’s Chambers was aware of the appeals and action 2400/2006.  The advice from the registry officer was again based upon a practice that had been in place in the registry for some years. 

43       It appears that the officer also told the solicitor that a notice of discontinuance should be filed with a letter “waiving rights” pursuant to s35(4) of the Act, to speak to the minute in relation to discontinuing FBA 44 of 2006.  The solicitor prepared these documents and sent them to the Commission.  By email dated 14 February 2007 the registry officer thanked the solicitor and informed the solicitor that FBA 44 of 2006 would now be closed. 

44       Subsequent to that, the registry officer spoke to the solicitor by telephone and said, quite accurately, that the file was with the Acting President and it may be necessary, procedurally, for a formal hearing to take place, to discontinue the matter.  The solicitor told the registry officer that her firm would await the advice of the Commission. 

The Notice of Discontinuance

45       As stated earlier, the document entitled “Notice of withdrawal or discontinuance” was dated, and filed by the appellant’s solicitors at the Commission, on 14 February 2007.  The notice was in the form of Form 14 of the Regulations.  The notice was addressed to the respondent, care of his solicitor/counsel.  The document said “the applicant [sic] hereby discontinues or withdraws this application [sic] or the following part of the claim [sic], namely -”.  There was nothing inserted in the space in the document that followed. 

46       Also on 14 February 2007 the appellant’s solicitors sent to the Commission registry officer, with a copy to the respondent’s solicitor/counsel, a letter which referred to the notice of discontinuance and said that the “applicant [sic] waives its right to speak to the minutes pursuant to section 35(3) of the Industrial Relations Act 1979 (the Act) and consents to a waiver of the requirement of section 35 of the Act pursuant to section 35(4) of the Act.” 

Correspondence with the Acting President’s Associate

47       On 26 February 2007, the Acting President’s associate, at the direction of the Full Bench, sent a letter to the appellant’s solicitors.  The letter referred to the notice of withdrawal or discontinuance and the letter dated 14 February 2007.  The letter said that these documents together with the other documents which had been provided to the deputy registrar of the Commission had been bought to the attention of the Full Bench. 

48       Amongst other things the letter said:-

“The Full Bench is presently of the view that the document which has been filed does not discontinue the appeal as the document together with regulations 16(1) and 16(4) and 99, referred to in the top right hand corner of the document all refer to an “application” and not an appeal.  The Full Bench is however prepared to treat the document as an application to discontinue the appeal, which will be listed for hearing.”

49       The letter also said, amongst other things, that the Full Bench would like to hear submissions at the hearing on paragraph [23](c) of the written submissions in action 2400/2006, and also the question of the Commission’s jurisdiction.  The letter stated “The Commission is ordinarily required to decide if it has jurisdiction, and this decision can be appealed to the Full Bench.  (See R v Blakely and Others; ex parte The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 69; and Re Gillies Contracting Pty Ltd (in liq); Khatri v Price and Another (1999) 166 ALR 380 at ([15])).”

50       The letter then referred to arrangements for listing the matter for hearing.  A copy of the letter was sent to the solicitor/counsel for the respondent.  It was sent with a covering letter which asked whether he intended to appear at the hearing and if so his unavailability as to listed potential hearing dates.  This letter was also dated and sent on 26 February 2007. 

51       On 26 February 2007 the Acting President’s associate received a letter from the appellant’s solicitors advising that counsel was available for a half day hearing on 4 of the days listed in the letter dated 26 February 2007.  The letter requested advice as to when the matter was to be listed. 

52       By letter to the appellant’s solicitors dated 27 February 2007 the appellant’s solicitors were advised that the application to discontinue the appeal would be heard on 16 March 2007 at 10:00am.  A notice of hearing was enclosed.  The letter also stated that the Acting President’s associate had been advised by “counsel for the respondent” that he did not intend to appear at the hearing.  A copy of the letter was sent to the respondent’s solicitor/counsel. 

53       In response to the letter from the Acting President’s associate to the appellant’s solicitors dated 26 February 2007, there were two letters from them in reply.  One was dated 8 March 2007 and the second was dated 9 March 2007.  The letter dated 9 March 2007 said the appellant had been informed of the issues raised by the Full Bench in relation to the discontinuance of the appeal.  The solicitors advised that their client did not wish them to attend the Commission on its behalf on 16 March 2007 and said that it did not intend appearing by other counsel or personally.  The letter said the appellant “takes the view that the subject matter of the application has been quashed by orders of the Supreme Court (Master Newnes) of 8 February 2007.  It does not wish to incur further costs on an unnecessary basis given its expenditure to date, and has asked us to respectfully communicate its position to the Full Bench”. 

54       The letter dated 8 March 2007 was about, amongst other things, the jurisdiction of the Commission and paragraph [23](c) of the written submissions to the Supreme Court.  The letter confirmed that the written submissions were prepared by counsel and signed on his behalf by one of the solicitors employed by the firm of solicitors representing the appellant. 

55       With respect to paragraph [23](c) of the written submissions the letter noted that a submitting appearance had been filed on behalf of Commissioner Scott in action 2400/2006. 

56       The letter said this was appropriate, in line with authorities such as R v The Australian Broadcasting Tribunal and Others; ex parte Hardiman and Others (1980) 144 CLR 13 at 35.  (This authority had been referred to in the letter from the Acting President’s associate to the solicitors).  After traversing matters relevant to paragraph [23](c) of the written submissions, the letter said that “it may be the case that the paragraph might have been better drafted so as to refer to the absence of any active contradictor to the application, rather than to the filing of a submitting appearance by the Commission.”.  The letter also said Master Newnes had specifically called for oral submissions on the issue of whether the order should be made absolute and that after hearing further submissions he was satisfied the course was appropriate. 

57       In relation to the question of jurisdiction the letter said that:-

“While it may be accepted that in the ordinary course the Full Bench of the WA Industrial Commission has some limited jurisdiction to decide whether it has jurisdiction in a particular case, the authorities cited in the Commission’s letter of 26 February 2007 are not authorities concerning the WorkChoices legislation (which is unique).  Under the WorkChoices legislation Commonwealth law specifically sets out to exclude the State Industrial Relations legislation.  If the State legislation is validly excluded as the High Court has found, the availability of a viable appeal to a Full Bench created by that excluded state legislation is undermined.

Furthermore, there is an element of obvious circularity and potential confusion in asking the Full Bench of the WA Industrial Commission to determine whether that Full Bench has jurisdiction to determine this jurisdictional issue.  A question could arise as to whether that very course might in any event be argued to be a form of submission to the jurisdiction of the Full Bench.  If so, that course would have been inappropriate.  In contrast, there can be no argument that the Supreme Court of WA had unquestioned jurisdiction to determine the issue, as it did.”

58       The letter dated 8 March 2007 also said that a copy of the letter from the Acting President’s associate had been provided to the appellant’s counsel. 

59       The appellant’s counsel, by facsimile, sent a letter in reply to the Acting President’s associate dated 8 March 2007.  Amongst other things, counsel, in the letter, referred to paragraph [23](c) of the outline of submissions and said the “Commission [sic] could have appeared in the Supreme Court proceedings to make submissions in relation to its powers and procedures.  The possibility of a tribunal [sic] making submissions going to its powers and procedures was expressly acknowledged in R v Australian Broadcasting Tribunal and Ors; Ex parte Hardiman (1980) 144 CLR 13.  See also Custom Credit Corp Ltd v Lupi [1992] 1 VR 99 at 100-1, 112 and 126; TXU Electricity Limited v The Office of the Regulator General and Ors [2001] VSC 4.”  The letter also said there were numerous instances of “Tribunals” appearing in cases where there is no contradictor and the “Tribunal” has sought to make submissions as to its powers and procedures.  The letter also said the Commission had ample opportunity to appear and make such submissions and was not precluded from doing so by the “Hardiman principle”.  This letter did not make the concession about the drafting of paragraph [23](c) referred to in the letter from the appellant’s solicitors dated 8 March 2007. 

60       With respect to the question of the Commission’s jurisdiction, the letter from counsel contained the following:-

“It is not disputed that, in the ordinary course, the Full Bench has jurisdiction to decided whether it has jurisdiction in a particular case.  However the authorities cited in your letter do not address the situation in which, as here, the legislation creating the tribunal is sought to be excluded.

In my opinion, if, as here, the IR Act is excluded in respect of constitutional corporations, it is as if there is no Full Bench to appeal to.

Further the circularity of an appeal to the Full Bench on the basis that the IR Act has been excluded is obvious.

Even if it could be said the Full Bench had limited jurisdiction to determine whether it had jurisdiction, in the sense discussed in Khartri v Price & Anor (1999) 166 ALR 380, Crown considered the Full Bench did not have jurisdiction – so that, in Crown’s view, any appeal to the Full Bench on the question of jurisdiction would only have resulted in the Full Bench finding that it had no jurisdiction to entertain the appeal or quash the Commissioner’s decision.  Given Crown’s position, the only means of quashing the decision was by prerogative writ or appeal to the Federal Court.”  (Paragraph numbers omitted)

61       On 9 March 2007 the Acting President’s associate sent a letter to the appellant’s solicitors.  This letter was also sent at the instruction of the Full Bench.  In its final paragraph, the letter requested that a copy be provided to counsel, given his interest in the matter.  The letter said the present view of the Full Bench was that it was appropriate to make an order that the appeal be dismissed and that it proposed to publish reasons for taking this course. 

62       The letter also said:-

“It is intended however that the reasons will discuss the jurisdiction of the Commission and the Full Bench in matters at first instance and on appeal, which raise the question of whether the jurisdiction of the Commission or Full Bench is excluded by the Workplace Relations Act 1996 (Cth) (WRA).

In this regard I have been asked to bring to your attention, in addition to the points made, in my previous letter, the following preliminary views of the Full Bench.

The WRA “excludes” the operation of legislation including the Industrial Relations Act 1979, in certain circumstances.  The Commission should, in any case in which the issue is relevant, decide whether it has jurisdiction or whether a combination of the WRA and s109 of the Constitution means that it does not. 

A decision on this issue at first instance is subject to appeal to the Full Bench.  Also in an appeal a party may argue that the Commission at first instance had no jurisdiction even if the issue was not raised at first instance.  The Full Bench must still decide whether the Commission had jurisdiction, although it is accepted that only the High Court may finally decide the question of jurisdiction where there is a constitutionally based challenge to jurisdiction. 

It is not apparent that the amendments to the WRA changes any of this or the applicability of the two cases which were referred to in my previous letter. 

Additionally the reasons of Barwick CJ in R v Federal Court of Australia; ex parte National Football League (1979) 143 CLR 190 at 202 to 204 and R v Heagney: ex parte ACT Employers Federation (1976) 137 CLR 86, Barwick at 89 support this view.  City of Mandurah v Hull (2000) 100 IR 406 was an appeal to the Industrial Appeal Court (IAC) about, amongst other things, whether the jurisdiction of the Commission, in a s29 application, was on the facts, ousted because of amendments to the WRA and s109 of the Constitution. The issue was considered and adjudicated upon by the Commission at first instance, the Full Bench and the IAC.  At no point in the reasons of the IAC did that court suggest that this was not an appropriate process.

The Full Bench does not at present consider there is any “confusion” [in the above quoted section of] your letter dated 8 March 2007.

The Full Bench does not at present see that a party arguing that the Commission does not or did not have jurisdiction somehow involves a submission by that party to the jurisdiction of the Commission, or whether this would be relevant if the Commission did not have jurisdiction because of the Constitution, as you have argued in the same letter.

The present view of the Full Bench is that submission that the Supreme Court had “unquestioned jurisdiction to determine the issue”, in the same letter, appears an overstatement as only the High Court can finally determine questions of jurisdiction based on the operation of s109 of the Constitution.

At present the Full Bench does not intend to conduct the hearing presently listed for Friday, 16 March 2007, unless you advise that in light of the above you wish for a hearing to take place.  Additionally, if you wish to make any written submissions in response to the points above, the Full Bench would welcome these prior to 4:00pm on Wednesday, 14 March 2007.”

63       No additional submissions were received by or on behalf of the appellant, either by its solicitors or counsel.  This was not surprising given what the appellant’s solicitors had earlier said in their correspondence about the appellant not wishing to incur more costs in these proceedings. 

Matters to be Addressed

64       The issue of the appropriate order to make needs to be addressed.

65       Additionally, in light of the Supreme Court proceedings which have taken place there are two other matters that should be commented on.

66       One is about the capacity or appropriateness of Commissioner Scott, as a named party to action 2400/2006 to be represented and to have appeared in those proceedings. 

67       The second is the question of the jurisdiction of the Commission to determine whether or not it has jurisdiction, in light of the amendments to the WRA, and the jurisdiction of the Full Bench to hear an appeal on such an issue.

Notice of Discontinuance

68       We have earlier set out the circumstances in which the notice of discontinuance was filed and its terms.  The filing of the notice by the solicitors for the appellant was quite understandable given the interaction with registry we have described.  The actions of the registry were as we have indicated based upon what is apparently a long standing practice of the Commission. 

69       There is no express legislative support however for the Full Bench to make an order for the discontinuance of an appeal. 

70       The only reference to discontinuing proceedings in the Act is in s27(1)(a), which provides as follows:-

“27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — 

(a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied — 

(i) that the matter or part thereof is trivial;

(ii) that further proceedings are not necessary or desirable in the public interest;

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be;”

71       The rest of s27 refers to other powers of the Commission. 

72       There are two issues in applying this subsection to the present situation.  The first is that it refers to the discontinuance of a hearing, as opposed to “the matter or any part thereof” in the “proceedings”, which is what is referred to elsewhere in the subsection.  There seems to be a distinction between the “hearing” and the “matter” and/or “proceedings”.  The present notice does not as we apprehend it simply want any hearing to be discontinued, but by the filing of the notice, the cessation of the appeal entirely.  In any event it is difficult to see there is or has been any “hearing” of the matter by the Full Bench which can be discontinued under this subsection. 

73       The second issue is that s27 refers to the powers of the Commission.  From the definition of the Full Bench in s7 of the Act, however, it seems implicit that the Full Bench as part of the Commission has the powers set out in s27.  If a notice of discontinuance was filed however, the Full Bench could, on that basis and in an appropriate case, make an order of dismissal of the appeal under s27(1)(a)(iv).  Such an order would be consistent with s49(5)(a) of the Act which gives the Full Bench the power to dismiss an appeal.

74       A notice of discontinuance, in terms of regulation 16 and form 14, does not refer to the discontinuance of an appeal or an order of discontinuance of an appeal.  This impacts upon the efficacy of the long held practice of the Commission registry referred to earlier.

75       As stated, the appropriate order is a dismissal of the appeal.

76       The reasons for the making of this order are that the appellant has clearly indicated that it does not wish to proceed with the appeal, by the filing of the notice of discontinuance and the subsequent correspondence from its solicitors.  The appellant’s solicitors were provided with notice that the Full Bench was intending to take this course and did not object to it. 

77       In any event, given the orders made by Master Newnes, it is inevitable that the appeal should now be dismissed because the order made by Commissioner Scott which has been appealed against, has been quashed by the writ of certiorari. 

The Commission or Scott C Appearing in Action 2400/2006

78       Given the contents of paragraph [23](c) of the written submissions, referred to earlier, the response of counsel for the appellant in his letter to the Acting President’s associate dated 8 March 2007 and for the guidance of the Commission and its Commissioners in the future, it is appropriate to say something about this issue. 

79       It should first be recognised that the first respondent to action 2400/2006 was not the Western Australian Industrial Relations Commission, but Commissioner Scott, named personally, in her capacity as a Commissioner.  It is at present unnecessary to consider whether it would have been more appropriate or preferable to have named the Commission as the first respondent. 

80       The fact that the first respondent was “Commissioner P E Scott” seems to have been overlooked in the letter from counsel to the Acting President’s associate which said the “Commission” could possibly have taken part in action 2400/2006.  It would, in our opinion, be quite unusual for an individual such as Commissioner Scott to be represented before the Supreme Court, in an application advocating for the quashing of a decision she made, to explain “the powers and procedures of the Commission”. 

81       Additionally, the issue at hand was not the “powers and procedures of the Commission”.  The issue created by the drafting of paragraph [23](c) was that it gave the impression that the filing of a submitting appearance by the first respondent was a factor to take into account in whether to make an order absolute.  In our opinion the filing of a submitting appearance was, with respect, what was required by Commissioner Scott, as the ordinary and accepted practice to observe.  It was, with respect, in our opinion a neutral factor relevant to the granting of the order absolute.

82       It could not be said, for example, that it was the role of Commissioner Scott, or indeed anyone from the Commission, to have appeared before the Supreme Court and explain that an appeal, or appeals to the Full Bench, had been filed or to have canvassed and announced any preliminary views of the Full Bench about whether it had jurisdiction to decide an appeal based upon a ground that Commissioner Scott did not have jurisdiction, because of the WRA, to hear and determine the application and make the orders which she did. 

83       Also in our opinion the argument that the Hardiman principle allows scope for “tribunals” to appear, is not applicable to the present situation.  The Commission is not a “tribunal”, but a court, at least in the exercise of its jurisdiction in relation to the referral of claims of unfair dismissal and the denial of contractual benefits.  (See s12 of the Act and Enright v Sleepeezee Pty Ltd (2004) 84 WAIG 305 at [64]).

84       Further, the Commission as constituted by Commissioner Scott, in arbitrating upon the denied contractual benefits claim referred to the Commission by the respondent under s29 of the Act, was clearly exercising a judicial function and acting as a court.  (See Richardson v Pipunya Pty Ltd (1999) 79 WAIG 1459 at 1461; Helm v Hansley Holdings Pty Ltd (In liq) (1999) 118 IR 126; MUSU v Sherriff [2004] VSC 266 and ALHMWU v Home Care Transport Pty Ltd (2002) 117 FCR 87; cf in NSW, Brian Rochford Ltd (Administrator Appointed) v Textile Clothing and Footwear Union of NSW (1998) 85 IR 332 at 338-340).

85       This makes even more untenable the suggestion that Commissioner Scott or the Commission ought to have appeared in the Supreme Court proceedings and moreover that this factor is something which could be argued to support the making of an order absolute. 

86       It is appropriate to quote from what was said in Hardiman, although recognising that it referred to the position of tribunals.  The points made by the High Court apply with greater force to a court.  The High Court at pages 35-36 said:-

“There is one final matter. Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.”

87       There was nothing “exceptional” which could justify attempts by the Commission or more particularly Commissioner Scott to seek to make representations to the Supreme Court. 

88       It is also useful to refer to the recent decisions of the Federal Court in CTS Ltd v Australian Broadcasting Authority (No 2) [2004] FCA 614 at paragraphs [5] – [13] and the Supreme Court of Victoria in TXU Electricity Ltd v The Office of the Regulator-General and Others (2001) 3 VR 93, one of the decisions cited by counsel in his letter to the Acting President’s associate.  These authorities made the following points, not all of which apply in the present matter:-

(a) Unless there are exceptional circumstances an administrative body, such as the Australian Broadcasting Authority, should not appear to refute the arguments of a party to proceedings and become a protagonist (CTS at [5]).

(b) The “Hardiman principle” applies to bodies exercising a regulatory role (CTS at [12], TXU at [42]-[45]).

(c) A reason for the principle is the prospect that the matter may be remitted back for determination by the primary decision-maker (TXU at [42]-[45]).

(d) In cases in which writs of prohibition, mandamus and sometimes certiorari were sought in the High Court against the Court of Conciliation and Arbitration, Commissioners of the Conciliation and Arbitration Commission and the AIRC, these bodies were discouraged from appearing (TXU at [35]).

(e) In proceedings where (as here) there was an obvious potential contradictor it has been the practice of courts not to appear where they were the subject of proceedings where prerogative relief was sought (TXU at [37]).

(f) Industrial tribunals and courts characteristically did not argue questions of power – there was always an obvious potential contradictor on hand (TXU at [40]).

89       In the circumstances nothing further needs to be said about this topic.  With respect, the course which ought to be followed by the Commission and members of the Commission in any similar application in the future is clear.  It was the practice followed in action 2400/2006. 

Jurisdiction of the Commission and the Full Bench to Decide if it has Jurisdiction

90       The preliminary views on these issues were set out in the letters sent by the Acting President’s associate to the solicitors for the appellant, as directed by the Full Bench.  In our opinion, having further considered the matter, we confirm and support the position expressed in the letters. 

91       There is no doubt now that if a corporation is a “constitutional corporation”, including a “trading corporation”, then by virtue of sections 4, 5, 6 and 16 of the WRA and s109 of the Constitution, the Act will be excluded from operation where s16(1) of the WRA applies. 

92       This conclusion is arrived at in the following way.  Section 16(1) of the WRA states that it “is intended to apply to the exclusion of all the following laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer …”.  There is then listed 5 such laws.  The first is “a State or Territory industrial law”.  This expression is defined in s4 of the WRA to mean, amongst other laws, the Act.  (See (a)(iii) of the definition of the expression).

93       The s16 exclusion is limited in its application to “an employee or employer”.  So far as is presently relevant an “employer” is defined in s6(1)(a) to mean a “constitutional corporation”, and an “employee” under s5 relevantly means “an individual … employed … by an employer”.  A “constitutional corporation” in turn is defined in s4 of the WRA to mean “a corporation to which paragraph 51(xx) of the Constitution applies”.  This paragraph of the Constitution lists: “Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”.

94       The exclusion of the Act, is therefore, as stated above, dependent upon there being a corporation which is a constitutional corporation, including a trading corporation.  Whether a corporation is a trading corporation is ultimately a question of fact.  “Whether the trading activities of a particular corporation are sufficient to warrant its being characterised as a trading corporation is very much a question of fact and degree”.  (R v Judges of the Federal Court of Australia and Another; ex parte The Western Australian National Football League (Inc) and Another (1979) 143 CLR 190 (Adamson) per Mason J at 234).

95       It is therefore a factual issue which determines whether the Commission has jurisdiction over a corporation.  It is a jurisdictional fact, in the sense of a factual “precondition to the valid exercise of power”.  (Judicial Review of Administrative Action, Aronson and Others, Lawbook Company, 3rd Edition, 2004, page 227).  Unless a corporation is not a trading corporation (and is no other type of constitutional corporation) the Commission does not have jurisdiction.

96       The Commission, like any other court or indeed any tribunal, has a duty to decide whether or not it has jurisdiction.  (See R v Blakely and Others; ex parte The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 69; Re Gillies Contracting Pty Ltd (in liq); Khatri v Price and Another (1999) 166 ALR 380 at [15], Adamson at 202-204, 225, 226, 228 and 230; R v Heagney and Another; ex parte ACT Employers Federation and Others (1976) 137 CLR 86 at 89; Mineralogy Pty Ltd v National Native Title Tribunal and Others (1997) 150 ALR 467 at 473-474; and Springdale Comfort Pty Ltd v BTAUWA (1986) 67 WAIG 325 at 330). 

97       For example, Katz J in Khatri v Price at [14] referred to the duty of an Australian Court to satisfy itself that it has jurisdiction and at [15] said that “every Australian Court must have at least a limited jurisdiction in every proceeding in which its jurisdiction is purportedly invoked, namely a jurisdiction to determine whether it has the jurisdiction which has been purportedly invoked”.  These observations echoed the analysis by Latham CJ in Blakely at 70 where the jurisdiction of a Commissioner under the Commonwealth Conciliation and Arbitration Act 1904-1949 (Cth) depended on whether there was an “industrial dispute”.  Latham CJ said, in effect, the Commissioner was required to consider and decide whether he had jurisdiction.  However, Latham CJ at 69-71, said this issue could not be conclusively determined by the Commissioner.  This was, in part because it was “a constitutional fact, whose existence can be re-determined at any time by the High Court”.  (Aronson at 237).

98       Therefore when the issue of the jurisdiction of the Commission is dependent on a constitutional question, the Commission must attempt to determine if it has jurisdiction.  It is an attempt, as only the High Court may finally determine a constitutional question (Adamson per Barwick CJ at 202-204 and Mason J at 225, 226, 228 and 230).

99       The decision of the Commission as to whether or not it has jurisdiction, which in this case was dependent upon whether the appellant was not a trading corporation, may be appealed to the Full Bench. 

100    In Adamson, the jurisdiction of the Federal Court, under the Trades Practices Act 1974, to issue injunctions for a breach of s45 of that Act, depended upon whether the West Perth Football Club and the Western Australian National Football League were “trading corporations”.  After considering the issue of jurisdiction in some detail, Mason J at page 230 said: “I conclude, therefore, that the Federal Court has jurisdiction to decide whether the prosecutors or any of them are trading corporations … [and] … the existence of the appeal [to the High Court] constitutes a persuasive ground for refusing the writ [of prohibition] as a matter of discretion.”  By the same reasoning the Commission and Full Bench have jurisdiction to decide if the Act does not apply, to the Commission with respect to and because a party is a trading corporation.

101    In any action or appeal in which this issue was relevant, notices under s78B of the Judiciary Act 1903 (Cth) would be required to be served on the Attorneys-General of the Commonwealth, States and Territories.  This is because it is the application of s109 of the Constitution together with the WRA which, for a trading corporation, cause the Act not to operate.  (See Re S and the Adoption Act 2000 (NSW) [2005] NSWSC 1346 at [31] – [35] and the authorities cited therein and BGC Contracting Pty Ltd v The CFMEU [2004] FCA 417).

102    As stated in s78B, where the Attorneys-General of the Commonwealth, States and Territories receive such a notice, they may apply (under s40 of the Judiciary Act) for the removal of the proceedings to the High Court.  If the proceedings are so removed, then this will allow for the final determination of the constitutional question which, in a case like the present, would determine the jurisdiction of the Commission. 

103    The possibility of removal, however, does not diminish the requirement of the Commission to attempt to determine whether or not it has jurisdiction, nor the entitlement of any party to appeal against this decision to the Full Bench or the Industrial Appeal Court.  (See s90 of the Act). 

104    Indeed, this is what occurred in the proceedings which culminated in the decision of the Industrial Appeal Court in City of Mandurah v Hull (2000) 100 IR 406.  This decision was an appeal to the Industrial Appeal Court from a decision of the Full Bench.  The decision of the Full Bench was an appeal against a decision by a single Commissioner that the Commission did not have jurisdiction because of the then provisions of the WRA combined with s109 of the Constitution.  This issue was considered and determined by the Commission at first instance, the Full Bench and the Industrial Appeal Court.  At no stage throughout these proceedings, and in particular in the reasons of the Industrial Appeal Court, was it suggested that the Commission at first instance, the Full Bench or the Industrial Appeal Court lacked the jurisdiction to attempt to determine whether the Commission at first instance had jurisdiction to hear the substantive application before it, which was also an application under s29 of the Act. 

105    An even more apposite example is Lawrence v Aboriginal Legal Service of Western Australia Inc (the ALS) (2006) WAIRC 05849.  At first instance a preliminary issue raised by the ALS was heard and determined about whether the appellant was a trading corporation.  The Commission determined it was not and therefore it had jurisdiction to determine the substantive claim.  This decision was appealed against and the Full Bench has heard the appeal on 1 March 2007 and reserved its decision. 

106    It is also noted that in Re Inquiry into matters relating to the availability of work at Tristar Steering and Suspension Australia Ltd [2007] NSW IR Comm 50, a Full Bench of the New South Wales Industrial Relations Commission decided that although (unlike the Commission) it was not a court, it had jurisdiction to attempt to determine if its jurisdiction was excluded by the WRA, with respect to an inquiry into an asserted trading corporation, on the basis of the status of the corporation and also because it was alleged s146(1)(d) of the Industrial Relations Act (NSW), under which the inquiry was initiated, was excluded from operation by the WRA.  The Commission decided that the section was not excluded and it therefore had jurisdiction.  It was not required to finally determine the trading corporation issue.  (See paragraphs [13] – [16], [60] - [62]).  On two occasions the Federal Court has refused injunctions to prevent the inquiry from proceeding.  In neither occasion was it suggested by the Court that the Commission did not have jurisdiction to attempt to determine the jurisdictional question.  (See Tristar Steering and Suspension Australia Ltd v Industrial Relations Commission of NSW [2007] FCA 348 (Edmonds J) and [2007] FCA 407 (Cowdroy J)).

107    An analogy might also be made with the decision of the New South Wales Court of Appeal in Chapman v Chapman [1983] 2 NSWLR 420.  This was also a situation where the jurisdiction of a state court was excluded if certain preconditions under Commonwealth legislation applied.  The appellant and respondent were formerly husband and wife.  They negotiated and executed an agreement for the purposes of s87 of the Family Law Act 1975 (Cth) (the FLA).  During the negotiations they agreed that Mrs Chapman would indemnify Mr Chapman against a debt of $14,000 he owed to Mrs Chapman’s mother, Mrs Goldsmith.  The s87 agreement did not specifically refer to the debt or agreement about the debt.  District Court proceedings were brought by Mrs Goldsmith against Mr Chapman, who joined Mrs Chapman, who successfully relied upon their agreement about the debt to obtain judgment against Mrs Chapman. 

108    One of the questions in the appeal was whether the District Court had jurisdiction to enforce the indemnity agreement.  It was argued that only the Family Court had jurisdiction.  This was because under s8(1)(a) of the FLA and because of a proclamation under s40 of the FLA no court other than the Family Court had jurisdiction in respect of proceedings involving certain types of “matrimonial causes” as defined in the FLA.  Therefore the jurisdiction of the District Court depended on whether the proceedings before it involved a matrimonial cause as defined. 

109    The Court of Appeal (Mahoney and Priestley JJA; Hutley AP not deciding) decided the District Court proceedings were not a matrimonial cause of the relevant type and therefore the District Court was not acting outside its jurisdiction in hearing and determining the claim.  There was no suggestion in the reasons of the Court of Appeal that it could not consider and determine this jurisdictional question or that the District Court was prevented from doing so; or that only the Family Court could adjudicate on the jurisdictional issue. 

How An Appeal Could Be Determined

110    As stated earlier, no question of jurisdiction based on the WRA was raised at first instance in this matter.  Further, it was not an issue which was included in the grounds of appeal.  This is not to say, however, that it could not have become a ground of appeal upon an application to amend the grounds.  Ordinarily, an amendment to grounds of appeal based on an assertion that the Commission lacked jurisdiction to determine a matter because of an inconsistency with the WRA is one which the Full Bench would be expected to grant. 

111    In a case where, as here, there had been no evidence before the Commission at first instance about the trading activities of the appellant corporation, or argument about the effect of Regulation 1.2 of Division 2 of Part 1 of Chapter 2 of the Workplace Relations Regulations 2006 (reg 1.2 of the WRR), there remain possibilities about how the appeal could have been heard and determined. 

112    The first issue is whether s16(1) of the WRA applied to this matter.  Section 16(1) became operative on 27 March 2006.  Prior to that date the respondent had invoked the jurisdiction of this Commission on 3 March 2006 by filing an application to refer a claim under s29(1)(b)(ii) of the Act to claim that he had been denied a benefit which he was entitled under his contract of employment.  In his application, the respondent stated that he was owed $61,430.30 on the termination of his employment on 30 December 2005.  The respondent’s claim was heard by Commissioner Scott on 10 April 2006, 16 June 2006 and 25 August 2006, and her decision issued on 3 November 2006.  

113    Regulation 1.2 of the WRR excludes the operation of s16(1) of the WRA in respect of certain claims before this Commission and thus preserves the jurisdiction of the Commission to deal with particular matters which would otherwise be excluded by s16(1). 

114    Regulations 1.2(1), (2) and (4) provide:-

“(1) For paragraph 16 (2) (b) of the Act, subsection 16 (1) of the Act does not apply to a law of a State or Territory of a kind that is mentioned in this regulation.

Note   Under subsection 16 (1) of the Act, the Act is intended to apply to the exclusion of specified laws of a State or Territory so far as they would otherwise apply in relation to an employee or employer. The subsection lists the kinds of laws that are excluded.

However, subsection 16 (1) does not apply to a law of a State or Territory so far as the law is prescribed by the regulations as a law to which the subsection does not apply.

Rights and obligations — general

(2) Subsection 16 (1) does not apply to a law of a State or Territory (including a law relating to appeals) to the extent to which it relates to compliance with an obligation:

(a) under:

(i) that law; or

(ii) another law of a State or Territory;

which would otherwise be excluded by subsection 16 (1) of the Act; and

(b) in respect of an act or omission which occurred prior to the reform commencement.

…

Termination of employment

(4) Subsection 16 (1) does not apply to a law of a State or Territory (including a law relating to appeals) to the extent to which it relates to a termination of employment that occurred before the reform commencement.”

115    Paragraphs [12] to [15] of the written submission filed in the Supreme Court are part of the submissions quoted above.

116    In the first paragraph of footnote 2 of the written submissions, inserted after the word “exceptions” in paragraph [15] it was stated:-

“Various exceptions are prescribed by ss 16(2) and 16(3) of the WR Act and the Workplace Relations Regulation 2006 (WR Regs).  In Phillips v TR7 Pty Ltd (2006) 86 WAIG 2646 (Phillips) it was argued that the Commission’s ability to hear a contractual benefits claim was preserved by 2 of the prescribed exceptions, namely, regulations 1.2(2) and 1.2(4) of Chapter 2 of the WR Regs.  The Commissioner rejected the argument.”

117    Although, Commissioner Wood in Phillips v TR7 Pty Ltd (2006) 86 WAIG 2646 held that reg 1.2 does not apply to preserve the jurisdiction of the Commission to hear and determine a claim made under s 29(1)(b)(ii) of the Act where the employer is a “constitutional corporation”, we note that this issue is not without controversy.  Senior Commissioner Smith recently observed by way of obiter in Gwenda May Smith v Albany Esplanade Pty Ltd t/as the Esplanade Hotel (2007) 87 WAIG 508 that reg 1.2 does apply to save the jurisdiction of the Commission to hear and determine a contractual benefits claim where an act or omission relied upon to found the claim occurred prior to 27 March 2006. 

118    The second issue is whether, if it were a case, like this one appears to be, where neither party considered the trading corporation inconsistency with the WRA issues and the effect of reg 1.2 at first instance, but on examining the issue they agreed that the Commission did not have jurisdiction at first instance, the Full Bench may well have acted upon a consent position that the appeal be allowed and the orders made by the Commission at first instance be set aside. 

119    Thirdly, if reg 1.2(2) did not apply to oust the operation of s16(1) of the WRA the question of whether the respondent to an application before the Commission at first instance was a trading corporation was disputed, the Full Bench could, despite s49(4) of the Act, permit new evidence to be led on this issue, if it followed CFMEU v Perrott (2002) 83 WAIG 17 at [10] and FCU v George Moss Ltd (1990) 70 WAIG 3040). 

120    Fourthly, if the issue of the status of a corporation was required to be determined by the Commission at first instance, to decide whether it had jurisdiction, but it had not been, an appeal could be allowed, the orders of the Commission at first instance suspended, and the case remitted to the Commission for consideration and determination of the issue.  (See s49(5) of the Act).

Conclusion on Jurisdiction

121    For these reasons, it is our opinion that the Full Bench had jurisdiction to determine an appeal against the orders made by Commissioner Scott, on the basis of the constitutional issue which was subsequently raised in the proceedings before the Supreme Court.  It is therefore our respectful opinion that an application of the type which was made in this case to the Supreme Court was unnecessary.  The appeal could have been upheld and the decision of Scott C quashed (s49(5) of the Act).  This would have achieved the same result for the appellant as action 2400/2006.

122    It is appropriate in our opinion that the Supreme Court be aware of these respectful views and accordingly a copy of these reasons will be forwarded to the court. 

Order

123    As stated, the formal order which will be made by the Full Bench is simply that the appeal is dismissed.