The Public Service Association of SA v Commissioner for Publicemployment No. Scciv-01-627

[2001] SASC 340

THE PUBLIC SERVICE ASSOCIATION OF SOUTH AUSTRALIA  v  COMMISSIONER FOR PUBLIC EMPLOYMENT
[2001] SASC 340

Full Court:  Prior ACJ, Bleby and Martin JJ (Ex tempore)

1. PRIOR ACJ.  I agree with the remarks made by Bleby J. In the circumstances the only appropriate order for the Court to make is to rescind the leave to appeal granted on 27 April 2001.

2. BLEBY J. This is an appeal pursuant to leave granted by a judge of this Court against a decision of the Full Court of the Industrial Relations Court of South Australia. A Commissioner of the South Australian Industrial Relations Commission had, pursuant to s 214(1) of the Industrial and Employee Relations Act 1994, referred a question of law to the Industrial Relations Court as to whether a certain Memorandum of Understanding applied to the Lotteries Commission of South Australia. A single judge of the Court answered the question in the affirmative.

3. On appeal to the Full Court of the Industrial Relations Court the appeal was allowed, the Court deciding that it was inappropriate to provide an answer to the question referred because it was not a question of law. The Public Service Association of South Australia (the PSA) has appealed to this Court against that determination. However, in the meantime, the Lotteries Commission of South Australia and the PSA have entered into a new enterprise agreement which renders the question referred by the Industrial Relations Commission purely academic. The answer to it cannot affect any rights either of the Lotteries Commission, its employees or the PSA.

4. In those circumstances the Commissioner for Public Employment has now applied to rescind the granting of leave to appeal. The PSA, whilst it does not consent to the application, does not oppose it. To decide the appeal in the present circumstances would amount to no more than answering a theoretical question and providing an opinion on the set of circumstances which no longer exists. It cannot affect the rights of any parties to the appeal. I would therefore rescind the grant of leave to appeal.

5. In doing so, I express no opinion as to the correctness or otherwise of the decision of the Full Court of the Industrial Relations Court. In particular, I would not wish this withdrawal of leave to signal any agreement with the conclusion that there was no question of law before the Industrial Relations Court. Neither party, in their outlines of argument before us, sought to justify that conclusion. Furthermore, I would not want this decision to be taken as any condonation of the Court’s apparent willingness to decide a question, in this case the unenforceability of the Memorandum of Understanding at all, without hearing the parties on that question.

6. This Court recently had occasion in the State of South Australia v Day [2000] SASC 451 to set aside a decision of the Industrial Relations Court which was plainly wrong but which was reached without hearing the parties on the question. That practice is not only likely to constitute a denial of natural justice, but more often than not leads to a wrong decision. I regret to have to stress again to the Industrial Relations Court that it is a practice which should be avoided.

7. MARTIN J.           I also agree with the remarks of Bleby J.