Director General, New South Wales Department of Health v. Industrial Relations Commission of New South Wales [2010] NSWCA 47 (22 March 2010).

The New South Wales Court of Appeal has acted swiftly in the wake of the High Court decision of Kirk v. Industrial Relations Commission (NSW) [2010] HCA 1 in making orders against a decision of the Full Bench of the Industrial Relations Commission of New South Wales. Hitherto, one would have thought, the IRC decision would have been protected by the privative provisions of the Industrial Relations Act, s.179. This case involved an unfair dismissal claim squarely within the arbitral jurisdiction of the Industrial Relations Commission not the Industrial Court. It concerned a ward orderly in a public hospital who was summarily dismissed after taking a photograph of a naked two year old patient. He brought an unfair dismissal claim which at first instance was rejected. He appealed and the Full Bench allowed the appeal. The matters which were challenged before the Court of Appeal were the form of orders made by the Full Bench. Those orders were not to reinstate but to re-employ the Applicant in his former position. Further, it was ordered that he would not return to work and would resign in writing effective from the day immediately following the date of the decision. However, he was awarded his wages he would have received had be remained at work in the two year period from dismissal to the date of the Commission order.

The Court of Appeal considered the powers which the Commission could exercise under s.89 of the Industrial Relations Act and found that the Full Bench erred in relation to the exercise of the powers available to it . Writing the judgment on behalf of the Court, Chief Justice Spigelman found “both jurisdictional error and error of law on the face of the record”. He did this on three bases. Firstly, the order to re-employ the ward orderly was not authorised by the statute ,that is, to have him re-employed in his former position, secondly, the Full Bench failed to make findings essential as a pre-condition to the exercise of the statutory power and thirdly, a condition requiring a person to resign and not return to work was outside the permissible sphere of any order capable of answering the description of an order to “re-employ”. [22]

This case is a firm assertion by the Court of Appeal of its supervisory jurisdiction. The Chief Justice found that the orders made by the Commission misconstrued the statute and disregarded “both the nature and the limits of its functions and powers and made an order of a kind which lies outside the theoretical limits of its powers” (see Craig v. South Australia [1995] HCA 58). As a consequence he applied the test for the exercise of supervisory jurisdiction over an inferior Court. [24]

It is quite clear that the Court of Appeal will not be exercising the reserve it once had in relation to privative clauses and in particular privative clauses seeking to preserve the orders made by the Industrial Relations Commission of New South Wales even in industrial matters. In Dow Corning Australia Pty Ltd v. Monk & Ors [1984] 3 NSWLR 13, Justice Hutley, writing in the majority, refused to intervene in relation to an unfair dismissal order made by the Industrial Relations Commission. He said this was for the following reason; “It seems to me that where there is a colourable basis for claiming a matter is an industrial matter, or relates to an industrial matter, then the privative clause operates and the Supreme Court has no jurisdiction.”

In a speech delivered by Chief Justice Spigelman to the AGS Administrative Law Symposium, Commonwealth and New South Wales on 25 March 2010, dealing with the Kirk matter, His Honour said that the Kirk case will engage administrative lawyers for years. In that paper, he sets out that it will be easier to have the Supreme Court exercise its supervisory jurisdiction now that decisions purportedly protected by privative provisions have been rendered more open absent the tighter restrictions formerly imposed by the so called Hickman Principles. Now the supervisory jurisdiction of the Court of Appeal has been extended to unfair dismissal matters. It will also mean that other industrial matters well within the industrial arbitral role of the Commission will no longer be protected and final, but will be reviewable on the basis of jurisdictional error or error of law.

1. (1984) 3 NSWLR 13 at 17 F. See also Young v. Public Service Board [1982] 2 NSWLR 456 and Slattery v. Public Service Board [1983] 3 NSWLR 41 and Houssein v. Under-Secretary of Department of Industrial Relations & Technology (NSW) (1982) 148 CLR at 88.