NSW IRC Full Bench declined to reopen  					appeal proceedings

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NSW IRC Full Bench declined to reopen appeal proceedings

A Full Bench of the NSW IRC declined to reopen a matter that had already been decided on appeal.

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A Full Bench of the NSW IRC declined to reopen a matter that had already been decided on appeal.

The Full Bench noted that there is a salutary maxim which ought to be observed by all Courts of last resort - 'Interest reipublicae ut sit finis litium' [It is in the republic interest that there be an end to lawsuits.]

The Full Bench went on to state that its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as the NSW IRC.

This matter involved applications to reopen appeal proceedings and for the Full Bench to vacate orders made in those appeal proceedings. The matter before the Full Bench involved OHS prosecutions, but central to the argument was sec 179 of the the Industrial Relations Act 1996 (NSW) – the finality of decisions provision.

The Full Bench concluded that there were neither exceptional circumstances nor an irremediable injustice warranting reopening of the appeal proceedings.

Issue

The threshold issue was whether the Full Bench had the power to reopen the appeal proceedings. The applicants contended there was such power. The basis of this argument was that the effect of s 179 of the Industrial Relations Act 1996 (NSW) was to make the Full Bench a 'Court of last resort, just as the High Court is'.

reopening of appeal refused

The Full Bench concluded:

'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. …

[discretion]

… we shall proceed to determine, in the exercise of our discretion, whether the circumstances of this matter are sufficiently exceptional so as to warrant reopening of the appeal proceedings.

… We have concluded that there exists neither exceptional circumstances nor an irremediable injustice warranting reopening of the appeal proceedings.

[other similar cases]

… Finally, we consider there is an important public interest embodied in the principle of finality of litigation, a purpose to which the authorities referred to, and s 179 itself, are directed, although we note the applicants' submission that if the relief it seeks is not granted by the Full Bench they will seek prerogative relief in the Court of Appeal, a position that seems somewhat inconsistent with the main thrust of their contentions in these proceedings that this Court is a court of last resort by virtue of s 179.

Whilst any claim for relief in the Court of Appeal is, of course, a matter for the applicants, it was submitted in that respect that the preferable course, rather than the applicants seeking prerogative relief to which they allege they are entitled, is for this Full Bench to reopen and vacate the orders earlier made. We do not agree.

Whilst we have proceeded on the basis that this Court is a court of last resort for the purpose of considering whether there are exceptional circumstances warranting reopening, we are mindful of the force of what was said in Grierson and Bailey v Marinoff and the absence of any persuasive authority regarding the power of a court of last resort to reopen proceedings after orders have been perfected. But also, we consider there does not exist in this case an exceptional circumstance that overcomes the fundamental principle of finality of litigation. ...

The applicants point to the reopening of the appeal by a Full Bench of the Commission in Mitchforce Pty Ltd v Starkey (No 2) (2003) 130 IR 378. That case is plainly distinguishable from the present as it was a quite exceptional circumstance brought about by what the majority considered was a need for judicial comity following an invitation by the Court of Appeal to the Full Bench to reconsider its decision refuse leave to appeal in Mitchforce v Starkey (2002) 117 IR 122 and involving significant jurisdictional issues and where Mason P held that the Full Bench's decision to refuse leave to appeal was interlocutory: Mitchforce 57 NSLWR at [149]. That proposition was accepted by both parties in Mitchforce.

… We confirm the orders made on Friday 25 February 2005 that the notices of motion by the applicants be dismissed and that the applicants are to pay the respondent's costs of the proceedings.'

Ove Arup and Ors v Inspector Mansell [2005] NSWIRComm 49 - Wright J President; Walton J Vice-President; Boland J - 28/02/05
 
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