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Cochran v Sutton

Cochran v Sutton

Case [2014] NSWCA 185 5 June 2014

Statutory Construction

Civil Procedure

Administrative Law

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Court of Appeal

New South Wales

Case Title: Cochran v Sutton

Medium Neutral Citation: [2014] NSWCA 185

Hearing Date(s): 5 June 2014

Decision Date: 05 June 2014

Before: Bathurst CJ at [1];
Basten JA at [2];
Ward JA at [21]

Decision:
(1) Grant the applicant leave to appeal with respect to the judgment and orders of the Industrial Court of 5 December 2013.

(2) Set aside the orders of that Court dismissing the applicant's notice of motion and ordering that he pay Ms Sutton's costs of the motion.

(3) In place thereof, order that:

(a) the order of 21 October 2013 directing substituted service on the applicant of the first respondent's notice of motion filed on 15 May 2013 be set aside;
(b) declare that the Industrial Court is not able to authorise the service of originating process of the Court outside Australia;
(c) order the first respondent to pay the appellant's costs in the Industrial Court.

(4) Order that the first respondent pay the applicant's costs in this Court.

(5) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to her costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: JURISDICTION - service outside jurisdiction - whether jurisdiction of the Industrial Court permits service of its originating process outside Australia - substituted service unavailable where personal service not permitted - Industrial Relations Act 1996 (NSW), s 162(2)(f) - Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 11.1(1)

PRACTICE AND PROCEDURE - service of originating process - proceedings commenced in the Industrial Court - order for substituted service made to defendant outside Australia - whether originating process from Industrial Court can be served outside Australia - whether Industrial Court has equivalent powers to Supreme Court in providing for service of originating process outside Australia - Industrial Relations Act 1996 (NSW), s 162(2)(f) - Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 11.1(1)

Legislation Cited: Industrial Relations Act 1996 (NSW),ss 153, 162, 185; Pt 5; Ch 2, Pt 9; Ch 7A
Industrial Relations Amendment (Industrial Court) Act 2013 (NSW), Sch 1 [19], [29]
Industrial Relations Commission Rules 1996
Interpretation Act 1987 (NSW), s 78
Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 11.1, 11.2, 112; Pt 11; Sch 1, Sch 6

Cases Cited: Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268
Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd (No 2) [2001] NSWIRComm 92; 106 IR 274
Gosper v Sawyer [1985] HCA 19; 160 CLR 548
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Owners…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cochran v Sutton

Details

AGLC: Cochran v Sutton [2014] NSWCA 185
Case: [2014] NSWCA 185
Decision Date: 05 June 2014

CaseChat Overview and Summary

In *Cochran v Sutton*, the applicant sought leave to appeal to the Court of Appeal of New South Wales against orders made by the Industrial Court. The dispute concerned the ability of the Industrial Court to authorise the substituted service of its originating process on a party outside of Australia. The applicant had been served with a notice of motion via substituted service outside of Australia, and the Industrial Court had subsequently dismissed his application to set aside that order.

The primary legal issue before the Court of Appeal was whether the Industrial Court possessed the power to permit the service of its originating process outside of Australia, and consequently, whether it could make orders for substituted service in such circumstances. This involved an interpretation of the Industrial Relations Act 1996 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW), particularly in relation to the court's jurisdiction and procedural powers concerning service.

The Court of Appeal reasoned that the Industrial Court's powers regarding service of originating process were limited by the enabling legislation. It found that the Industrial Relations Act 1996 (NSW), specifically section 162(2)(f), did not grant the Industrial Court the broad powers equivalent to those of the Supreme Court to authorise service outside of Australia. Consequently, the Court held that the Industrial Court lacked the jurisdiction to permit service of its originating process outside of Australia, and therefore, an order for substituted service in such a scenario was invalid.

The Court of Appeal allowed the appeal, setting aside the Industrial Court's orders that dismissed the applicant's notice of motion and ordered him to pay costs. It declared that the Industrial Court could not authorise service of its originating process outside Australia and ordered the first respondent to pay the appellant's costs in both the Industrial Court and the Court of Appeal.

Orders

Orders of the court

(1) Grant the applicant leave to appeal with respect to the judgment and orders of the Industrial Court of 5 December 2013.

(2) Set aside the orders of that Court dismissing the applicant's notice of motion and ordering that he pay Ms Sutton's costs of the motion.

(3) In place thereof, order that:

(a) the order of 21 October 2013 directing substituted service on the applicant of the first respondent's notice of motion filed on 15 May 2013 be set aside;

(b) declare that the Industrial Court is not able to authorise the service of originating process of the Court outside Australia;

(4) Order that the first respondent pay the applicant's costs in this Court.

(5) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to her costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Cochran v Sutton [2014] NSWCA 185

Most Recent Citation

Sutton v Be Australia WD Pty. Ltd (No 2) [2015] NSWIC 9

Cases citing this decision · 4 of 4 shown

Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2)
[2018] NSWCA 124 Para 17

…all the provisions and policies to which she referred to as “regulatory context” were mandatory relevant considerations. 10. [2014] NSWCA 185 at [8] per Basten JA (Bathurst CJ and Ward JA agreeing).…
Sutton v BE Australia WD Pty Ltd (No 3)
[2017] NSWSC 689 Para 21

…NSW Court of Appeal which held that the Industrial Court did not have power to require service of its process outside of Australia: Cochran v Sutton [2014] NSWCA 185. As a result Mr Cochran could not be served.…
Community Housing Limited v Clarence Valley Council
[2015] NSWCA 327 Para 34

…of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421. That principle, to which Basten JA referred in Cochran v Sutton [2014] NSWCA 185 at [8], has particular application in the case of a superior court, and in my view has even greater force when the subject matter of the conferral of jur…
Sutton v Be Australia WD Pty. Ltd (No 2)
[2015] NSWIC 9 Para 6

…es for leave to file a Further Amended Summons in which she seeks to make changes in light of the decision of the Court of Appeal in Cochran v Sutton [2014] NSWCA 185 and correspondence between the parties. More controversially she seeks to join Mr Davidson as a second respondent.…

View all 4 citing cases →

Cases cited in this decision · 6 of 6 shown

Flo Rida v Mothership Music Pty Ltd
[2013] NSWCA 268 Para 9

…The Industrial Court was also aware that Studorp had been applied with respect to the District Court in Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 (Macfarlan JA, Ward and Gleeson JJA agreeing). Although the Court did not refer to r 1.5(4), it did rely upon r 11.1, noting that Pt 11 was "by its terms ... c…
Studorp Ltd v Robinson
[2012] NSWCA 382 Para 8

…his Court had held that there was no authority vested in the Dust Diseases Tribunal to direct service of its process overseas: Studorp Ltd v Robinson [2012] NSWCA 382 (Allsop P, Meagher and Hoeben JJA). No reliance was placed on r 1.5(4) because that provision did not commence until 10 August 2012 and it was probab…
Kirk v Industrial Court of New South Wales
[2010] HCA 1 Para 12

…rd" provide inadequate bases for reading down the clear and unambiguous language of Pt 11. As explained in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [55] the description of the Industrial Court as a "superior court of record" did not relieve it of liability to correction by this Co…
Owners of “Shin Kobe Maru” v Empire Shipping Co Inc
[1994] HCA 54 Para 1

…ions a provision conferring jurisdiction on a superior court has no application: cf Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404, 420-421.…
Gosper v Sawyer
[1985] HCA 19 Para 2

…observed by the particular court in the exercise of its jurisdiction ... [but] is a component and a measure of jurisdiction itself": Gosper v Sawyer [1985] HCA 19; 160 CLR 548 at 565 (Mason and Deane JJ). The reasoning in Gough & Gilmour in this respect should not be accepted.…
[2001] NSWIRCOMM 92
[2001] NSWIRCOMM 92 Para 2

…ursuant to the rule-making power in s 78 of the Interpretation Act 1987 (NSW): Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 2) [2001] NSWIRComm 92; 106 IR 274 at [92]. For the reasons given above, that approach should not be accepted. The Commission in Gough & Gilmour also relied on the rule-mak…

Legislation cited in this decision · 7

Uniform Civil Procedure Rules 2005 (NSW)
1.5, 11.1, 11.1(1), 11.2, 112 6 mentions (from Para 2)
Industrial Relations Act 1996 (NSW)
153, 162, 162(2)(f), 185 5 mentions (from Para 2)
Interpretation Act 1987 (NSW)
78 2 mentions (from Para 2)
Industrial Relations Amendment (Industrial Court) Act 2013 (NSW)
1 mention (from Para 6)
Industrial Relations Commission Rules 1996 (NSW)
1 mention (from Para 2)
Suitors’ Fund Act 1951 (NSW)
1 mention (from Para 13)
Supreme Court Act 1970 (NSW)
1 mention (from Para 2)

Case Title:	Cochran v Sutton
Medium Neutral Citation:	[2014] NSWCA 185
Hearing Date(s):	5 June 2014
Decision Date:	05 June 2014
Before:	Bathurst CJ at [1]; Basten JA at [2]; Ward JA at [21]
Decision:	(1) Grant the applicant leave to appeal with respect to the judgment and orders of the Industrial Court of 5 December 2013. (2) Set aside the orders of that Court dismissing the applicant's notice of motion and ordering that he pay Ms Sutton's costs of the motion. (3) In place thereof, order that: (a) the order of 21 October 2013 directing substituted service on the applicant of the first respondent's notice of motion filed on 15 May 2013 be set aside; (b) declare that the Industrial Court is not able to authorise the service of originating process of the Court outside Australia; (c) order the first respondent to pay the appellant's costs in the Industrial Court. (4) Order that the first respondent pay the applicant's costs in this Court. (5) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW) with respect to her costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	JURISDICTION - service outside jurisdiction - whether jurisdiction of the Industrial Court permits service of its originating process outside Australia - substituted service unavailable where personal service not permitted - Industrial Relations Act 1996 (NSW), s 162(2)(f) - Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 11.1(1) PRACTICE AND PROCEDURE - service of originating process - proceedings commenced in the Industrial Court - order for substituted service made to defendant outside Australia - whether originating process from Industrial Court can be served outside Australia - whether Industrial Court has equivalent powers to Supreme Court in providing for service of originating process outside Australia - Industrial Relations Act 1996 (NSW), s 162(2)(f) - Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 11.1(1)
Legislation Cited:	Industrial Relations Act 1996 (NSW),ss 153, 162, 185; Pt 5; Ch 2, Pt 9; Ch 7A Industrial Relations Amendment (Industrial Court) Act 2013 (NSW), Sch 1 [19], [29] Industrial Relations Commission Rules 1996 Interpretation Act 1987 (NSW), s 78 Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 11.1, 11.2, 112; Pt 11; Sch 1, Sch 6
Cases Cited:	Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd (No 2) [2001] NSWIRComm 92; 106 IR 274 Gosper v Sawyer [1985] HCA 19; 160 CLR 548 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Owners…