Finality of NSW IRC decisions under review

Cases

Finality of NSW IRC decisions under review

See: http://www.agd.nsw.gov.au/scjudgments/2003nswca.nsf/ba8ff0f7f4dcfb74ca256739000a724f/42c2172114d42c56ca256d430013a8ef?OpenDocumentMitchforce v Industrial Relations Commission & Ors [2003] NSWCA 151 (13 June 2003) - Spigelman CJ, Mason P and Handley JA.

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Legislation provides that decisions of the NSW Industrial Relations Commission are not subject to appeal beyond an appellate bench of the Commission itself. 

This privity clause in s179 of the Industrial Relations Act 1996 (NSW) was considered in a recent Court of Appeal case in which the majority judgment expressed doubts about its constitutional validity.

Legislation

The relevant legislation is:

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

Decision in this case

The issue before the Court of Appeal was whether a real estate lease could give rise to a contract coming within the terms of the unfair contracts legislation - 'whereby work is performed in an industry'.

The Court of Appeal differed from the conclusion of a Full Bench of the Commission which had found that the lease did give rise to an obligation to perform work:

  • The lease did not contain an implied term that the lessees would carry on the business and could not be a contract whereby work was performed in an industry on that basis.
  • The express covenants by the tenants to repair and maintain the premises could not make the lease a contract whereby work was performed in an industry.
  • (By majority) The work undertaken by the tenants in carrying on the business of the hotel did not make the lease a contract whereby work was performed in an industry.

However, the majority (Chief Justice Spigelman and Justice Mason) did not overturn the decision because of s179.

To overturn the decision of the Full Bench the Court of Appeal had to find it had the power to do so despite s179. The majority found that the constitutionality of the privative clause was uncertain, but did not determine the question.

Rather, the Court of Appeal invited the Full Bench to reconsider the case in light of its judgment. This meant that the Full Bench was wrong should reconsider and overturn itself.

The Court of Appeal (majority) found that it should not decide whether s179 was contrary to Chapter III of the Commonwealth Constitution until the Full Bench of the Industrial Relations Commission had had an opportunity to reconsider its interlocutory decision refusing the claimant leave to appeal.

See: Mitchforce v Industrial Relations Commission & Ors [2003] NSWCA 151 (13 June 2003) - Spigelman CJ, Mason P and Handley JA.

 

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