Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations (No 2)

[2015] NSWIC 5

Industrial Court

New South Wales

Medium Neutral Citation:

Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations (No 2) [2015] NSWIC 5

Hearing dates:

24 February 2015

Date of orders:

05 March 2015

Decision date:

05 March 2015

Before:

Kite AJ

Decision:

The Court makes the following orders:

(1) The appellant’s Notice of Motion is dismissed.

(2) Costs are reserved.

Catchwords:

APPEAL – Notice of Motion – application to amend appeal – proposed new issue for determination on appeal – issue not raised at first instance – foreshadowed application for leave to adduce fresh evidence in opposition – argument on proposed ground of appeal would contradict position advanced in lower court proceedings – leave to amend refused – Notice of Motion dismissed

Legislation Cited:

Crimes (Appeal and Review) Act 2001
Crimes (Local Courts Appeal and Review) Act 2001 (superseded)
Industrial Relations Act 1996

Cases Cited:

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Drake Personnel Ltd v Workcover Authority (NSW) [1999] NSWIRComm 343; (1999) 90 IR 464
Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations [2014] NSWIC 2
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68

Category:

Procedural and other rulings

Parties:

Tanwar Enterprise Pty Limited (Appellant)
NSW Industrial Relations (Respondent)

Representation:

Solicitors:
H N Simons (Appellant)
NSW Industrial Relations (Respondent)

File Number(s):

IRC 573 of 2014

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Chief Industrial Magistrate’s Court

Date of Decision:

27 June 2014

Before:

Goodwin LCM sitting as Acting CIM

File Number(s):

CIM 196197 of 2013

INTERLOCUTORY Judgment

1. In an earlier interlocutory judgment handed down by his Honour Boland AJ in Tanwar Enterprises Pty Ltd v New South Wales Industrial Relations [2014] NSWIC 2, Tanwar Enterprises Pty Ltd (“Tanwar” or “appellant”) was granted an extension of time to appeal from a decision of her Honour Acting Chief Industrial Magistrate Goodwin (“the CIM”). The decision was in respect of a prosecution against Tanwar by the respondent, New South Wales Industrial Relations, under s 357 of the Industrial Relations Act 1996 (“IR Act”). The appeal was brought under s 197(1) of the IR Act. The CIM’s orders were also stayed pending the outcome of the appeal.

2. On 12 December 2014, the appellant filed a Notice of Motion seeking leave, in effect, to introduce an issue for determination in the appeal which was not raised in the first instance proceedings. The respondent opposed the Motion to amend the application for appeal. This judgment deals with that Motion.

Evidence

3. The Appellant read the following Affidavits:

1. Affidavit of Howard Norman Simons filed 12 December 2014;

2. Affidavit of Ramesh Tanwar filed 18 February 2015; and

3. Affidavit of Howard Norman Simons filed 18 February 2015.

4. The Respondent read the Affidavit of Kathleen Wallace filed 16 January 2015.

5. There were no objections to the evidence read.

Appellant’s position

6. The appellant’s Motion seeks to raise an issue based on an interpretation of a Combined Communications Taxi Network sign on/sign off report relating to Mr Ranjeev Kumar (“the Report”), which was tendered as an exhibit by the respondent and formed part of the evidence at first instance. I note that Mr Kumar was the bailee of the appellant’s taxi in respect of whom the proceedings were brought.

7. Mr H Simons, the solicitor for the appellant, in his first affidavit said that there are shifts relating to the respondent’s claim in the Report that:

do not comply with the definition of a “shift” for the purposes of cll 2(f), (g) and (h) of the Taxi Drivers’ (Contract Drivers) Determination 1984 (“the Determination”).

8. The appellant contended that on the proper construction of the Determination, in particular the definition of “shift”, the Report constitutes evidence that Mr Kumar was not a “permanent bailee”. The outcome of the proceedings, it is said, would have been different had that been found to be the true position. This effect of the Report was not raised at first instance.

9. The appellant initially submitted that the issue does not require fresh evidence directly, but it would seek leave to adduce further evidence by way of affidavits with reference to the Report, to assist its interpretation, so as to argue the position that Mr Kumar was not a “permanent bailee” under the Determination. Ultimately, the appellant submitted it made no application to adduce additional evidence on the appeal.

10. Mr Tanwar in his affidavit stated his belief that Mr Kumar was not entitled to holiday pay, which view informs the grounds and reasons of the appellant in seeking to have the issue heard on appeal.

11. It is the appellant’s case that if the orders sought in the Notice of Motion are granted, the actual issue in relation to the Report would be argued at the hearing of the appeal.

Respondent’s position

12. The respondent submitted that the appellant’s position brought forth in the Notice of Motion is a “180 degree shift” from a position advanced by the appellant at first instance, being the purported fact that Mr Kumar was a “permanent bailee” as opposed to a “casual bailee”.

13. The respondent maintained that the appellant, with the benefit of counsel and an instructing solicitor:

had the opportunity to raise the issue in the first instance proceedings before the CIM and cross-examine the witnesses, including Mr Kumar, with respect to the Report. The appellant chose not to raise the issue in those proceedings.

14. It was submitted that the appellant had made express concessions in relation to Mr Kumar being a “permanent bailee” and that Tanwar was a “permanent bailor” within the meaning of the Determination. It was submitted that questions asked of Mr Kumar by the respondent in the lower court proceedings were asked “in the context and in light of the concessions that had been made” with respect to Mr Kumar being a “permanent bailee”. Indeed Mr Kumar was cross examined on the basis that he was a “permanent bailee”.

15. The respondent further submitted that allowing the motion would effectively extend the appeal proceedings, although it indicated that the issue will not necessarily affect the respondent’s position a great deal.

16. During the hearing of the Motion, the respondent foreshadowed making an application for leave to adduce fresh evidence in the event the Motion was granted. That evidence would be directed to factual issues which emerge in relation to the definition of “shift”. The appellant submitted in response that should such leave to adduce fresh evidence be granted, it would create further issues as to the extent to which further evidence and any cross-examination of witnesses is required for the purpose of the appeal.

Legislative Framework

17. Section 170 of the IR Act provides:

170 Amendments and irregularities

(1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.

(2) Any such amendment may be made:

(a) at any stage of the proceedings, and

(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).

…

18. Section 197(1) and (2) provides:

197 Appeals from Local Court

(1) An appeal lies to the Commission in Court Session against:

(a) any order made under this Act by the Local Court for the payment of money or the dismissal by the Local Court of an application for such an order (including a dismissal on the ground that it does not have jurisdiction to deal with the application), or

(b) any conviction or penalty imposed by the Local Court for an offence against this Act or the regulations, or

(c) a civil penalty imposed under this Act by the Local Court for a contravention of an industrial instrument or the dismissal by the Local Court of proceedings for such a civil penalty, or

(d) a civil penalty imposed under Division 7 of Part 13 of the Work Health and Safety Act 2011 by the Local Court for a contravention of a WHS civil penalty provision or the dismissal by the Local Court of proceedings for such a civil penalty.

(2) The provisions of the Crimes (Local Courts Appeal and Review) Act 2001 that relate to:

(a) appeals from the Local Court to the District Court or Supreme Court, and

(b) the decisions of the District Court or Supreme Court on any such appeal, and

(c) the carrying out or enforcement of any such decision,

(including those provisions as applied by section 70 of the Local Court Act 2007 ) apply, subject to the regulations under this Act, to any appeal referred to in subsection (1).

19. The Crimes (Local Courts Appeal and Review) Act 2001 is now known as the Crimes (Appeal and Review) Act 2001 (“CAR Act”). Some difficulties with the operation of these sub-sections were noted by Boland AJ in Tanwar at [8]-[11].

20. The relevant provisions of the CAR Act relating to the provisions that apply to appeals from the Local Court to the District Court or Supreme Court appear in Part 3 and Part 5 of that Act respectively.

21. Sections 17 and 18 under Div 1 of Pt 3 of the CAR Act, being the provisions of the Act that relate to appeals from the Local Court to the District Court, provide:

17 Appeals against sentence to be by way of rehearing of evidence

An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings.

18 Appeals against conviction to be by way of rehearing on the evidence

(1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.

(2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

There appears to be no equivalent provision in relation to appeals from the Local Court to the Supreme Court in Pt 5 of the CAR Act.

Consideration

22. It is unnecessary to resolve the difficulties referred to by Boland AJ at this stage as to the applicable provisions of the CAR Act. Although the respondent had alluded to the issue of the nature of this appeal, I have not received full argument from both parties. What appears to be accepted is that the appeal is not a hearing de novo: see in this respect Drake Personnel Ltd v Workcover Authority (NSW) [1999] NSWIRComm 343; (1999) 90 IR 464. The appeal may be either a rehearing or an appeal stricto sensu. In either case the ability to adduce new evidence is constrained.

23. Section 170 of the IR Act allows for the Commission to make amendments at any stage of the proceedings that the Commission considers to be necessary in the interests of justice.

24. In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7, the High Court considered the nature of an appeal by way of re-hearing, and the extent to which public interest must be weighed in the determination of such matters:

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438; Bloemen v The Commonwealth (1975) 49 ALJR 219. In O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319, Mason J in a judgment in which the other members of the court concurred, said:

In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480; Suttor v Gundowda Pty Ltd at (1950) 81 CLR 4187 at 438; Green v Sommerville (1979)141 CLR 594 at 607-8. However, this is not such a case. The facts are not admitted nor are they beyond controversy. The consequence is that the appellant's case fails at the threshhold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.

In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decision of six justices of this court (University of Wollongong v Metwally [2] (1985) 59 ALJR 481 at 483 the court said:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

The Court of Appeal recognised the great importance, in the public interest, of these principles. Their Honours summarised them in the following terms:

The finality of litigation; the difficultly of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance; keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court.

25. While the appellant asserts that the granting of the Motion will not require any fresh evidence, I disagree with that proposition. The respondent, in foreshadowing the making of an application for leave to adduce fresh evidence and further cross-examination of witnesses in the event that the Motion is granted, correctly indicates that the evidentiary issues would include the duties of a taxi driver, “usage” of the taxi otherwise than while logged on to the system and events such as accidents or illness which may impact on the length of a shift not reflected in the Report.

26. These seem to me to be but some of the factual issues which arise from the argument the appellant now seeks to raise. As observed in Coulton v Holcombe these issues should have been explored at first instance. It is enough to resolve the Motion against the appellant that such evidence could have prevented the point from succeeding.

27. Further, I accept the respondent’s submission that the appellant, having the benefit of counsel and an instructing solicitor, had ample opportunity to raise the purported issue before the CIM, but did not do so. It is very clear that the appellant ran its case on the premise that Mr Kumar was a “permanent bailee”. Nothing has been submitted to justify a conclusion that in this case, as described in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68, “most exceptional circumstances” exist so as to allow a departure from the case run at first instance. That is particularly so where the appellant wants to adopt a position directly contradictory to that contended below. Mr Kumar was cross examined by counsel for the appellant as follows:

Q. You knew you were a permanent bailee,didn’t you? You understood you were a permanent bailee? You knew you were permanent?

A. I, I knew that I was a permanent taxi driver for him.

28. It seems by reference to the cross examination leading up to and following that question that it was part of an attack on the credit of the witness. And therefore part of the appellant’s strategy below.

29. I am not satisfied that it is in the interests of justice to grant leave to amend the application to appeal so as to introduce a new issue for determination in these proceedings.

Costs

30. Ms Wallace in her affidavit filed 16 January 2015 stated that the respondent would be seeking professional costs in the matter, should the appellant be unsuccessful.

31. I will reserve the question of costs until after the balance of the appeal proceedings.

Orders

32. The Court makes the following orders:

1. The appellant’s Notice of Motion is dismissed.

2. Costs are reserved.

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Decision last updated: 05 March 2015