26 FEB 2007        
IRC 7143 of 2003






1.1 On 12 February 2007, the respondent filed an application with the Court titled "Application to Re-Open" ("the application"). The application was filed under matter number IRC 7143 of 2003 and these submissions proceed on the basis that the application pertains to that matter being an appeal to the Industrial Relations Commission in Court Session (as it then was) now the Industrial Court of New South Wales, from a decision of Her Honour Justice Schmidt (being IRC Matter 3124 of 2000).

1.2 The Appellant in IRC 7143 of 2003 has been directed by the Court to file submissions in respect of the respondent's application addressing the matter of whether the Court has the necessary jurisdiction to deal with the application and/or the matters raised in the application.

2. THE STATUS OF IRC MATTER 7143 of 2003

2.1 On 9 December 2004, the Commission in Court S issued its judgment in respect of the appeal-IRC 7142 of 2003. The following orders were made:

1.. Leave to Appeal was granted.

2. The appeal is upheld.

3.-The judgment and orders of Schmidt J in Matter No. iRC 3124:' of 2000 are set aside.

4. The matter is set down for further hearing in relation: to costs and to any orders that should be made in relation to the orders staying the decision of Schmidt J.

2.2 The only order not finalized in respect of the judgment is (4). The appellant notes that the respondent experienced a significant health difficulty soon after the judgment was handed down and that this has been the primary factor delaying the finalization of the matter.


3.1 The appellant submits that the application does not identify any jurisdictional. basis for either an amendment to the orders as set out above or to re-open the proceedings which were the subject of the appeal. The application does at (8) include references to a number of sections of the legislation, but does not identify which of those sections empowers the Court to do what the respondent asks.

3.2 The Court does not have an express statutory power to re-open the proceedings. To satisfy what is being sought in the application the Court would be required to set aside its own orders 1- 3 made on 9 December 2004 i.e. the Court is being asked to set aside its decision in respect of the Appeal.

3.3 The Court does not have any inherent power to re-open the Appeal by reason of the description of the Court as a superior court of record. The appellant notes that the respondent, at Section C of the application, appears to be placing some reliance upon the decision in Ove Arup Ply Ltd v Workcover Authority (NSW) (Inspector Mansell) (2005) 141 IR 78 ("Ove Arup") in asserting that the Court is a court of last resort. However, as was noted in Ove Arup, the High Court in DJL v Central Authority (2000) 201 ClR 226 questions whether a court of last resort has the discretion to re-open a perfected order or judgment. It is arguable that in 'matter IRC 7142 of 2003, orders 1 to 3 are perfected orders: Ove Arup; Kim Hollingsworth v Commissioner of Police [2007] NSWIRComm 7 ("Hollingsworth").

3.4 In Hollingsworth the Court at [58] said:

" 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 [28J[50J 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).
The Court went on to note at [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)."

3.5 Even if the Court is satisfied that there is some residual implied discretion arising from being a court of last resort, save for matters of jurisdiction, it is clear that if such a discretion existed it would be confined to exceptional circumstances. For the court to exercise this discretion it must first be satisfied that there is a need to avoid an "irremediable injustice- and that need is greater than the significant public interest of maintaining the finality of litigation. (see Ove Arup at 89 citing State Rail Authority (NSW) v Codelfa Construction Ply Ltd (1982) 150 CLR 29 at 38 per Mason and Wilson JJ; Metwally v University of Wollongong (1985) 60 ALR 68 at 70-71; Wentworth v Wentworth [1999] NSWSC 638 at [7] per Santow J; as to the central and pervading tenet against re-opening controversies that have been judicially resolved see: D'Orta-Ekenaike v Victorian Legal Aid (2005) 214 ALR 92 at 100 [34] ).


4.1 The Application does not identify the existence of any exceptional circumstances other than to assert that the Court has (a) made errors which should be corrected ( [c](2)); and/or the Court was (b) mistaken; Qr (b) the Court was deliberately misled by those acting for the Appellant. As to (a) & (b), the respondent does not suggest that these errors or mistakes can or should be amended by way of the "slip rule". The respondent appears to be asserting that the errors are substantial errors of law and fact. As such, the respondent seems to be asking the Court for leave to Appeal the judgment in the appeal. As to (c), the respondent's claims are made without any foundation and the assertion is clearly vexatious and scandalous. Similarly scandalous, and totally lacking in any relevance to either the appeal or this application is the attachment to the application wherein the respondent asserts, once again without any proper foundation, a number of. people have committed a criminal act or acts. The appellant asks that Court exercises it discretion and removes this document from the file.

4.2 The decision in matter IRC 7143 of 2003 explored the issues raised by the Appellant. The Court also permitted the respondent to argue various contentions during the course of the appeal (see [68]). At [89] the Court commented:

"Finally we should observe that we have some real reservations in allowing a contention to be argued as we have done in this appeal. Such a course has a potential to avoid the provisions of s. 188 of the Act for a prospective appellant/cross-appellant. In many respects, this is an exceptional case in the way that the case proceeded at first instance. The reason that we were prepared to allow the contention to be argued was that we regarded this case as being unlike many others, in the way it developed before her Honour. "

4.3 The respondent was represented throughout the Appeal by competent and experienced Counsel who argued the contentions as set out in [68]. None of the respondent's contentions were accepted by the Court. The application filed by the respondent clearly seeks to re-agitate those same matters. Similarly despite the clear and unequivocal commentary and findings of the Full Bench regarding the proper interpretation of the requirements of s. 20 of Teaching Services Act, the respondent asserts that this matter should also be reconsidered not because of any exceptional circumstances but because "the Commission is mistaken, or was misled". It is however, abundantly clear upon reading the respondent's particulars at [D] (2),that it is the respondent who is mistaken as to the matters that were the subject of the appeal and which have been properly and finally concluded, save as to the matter of costs and to any orders that should be made in relation to the orders staying the decision of Schmidt J.

It is clear that the respondent has not, and cannot identify any jurisdictional basis for the re-opening of IRC 7142 of 2003. The application should be dismissed.

Elaine Brus
Counsel for the Appellant

15th Floor Wardell Chambers