Case: Fish v Solution 6 Holdings Ltd (2006) 80 ALJR 959
Outcome: cited
Questions of the tension between the conferral of limited jurisdiction upon the Industrial Court and constraints upon supervisory challenges to the exercise of that limited jurisdiction on grounds of jurisdictional error (before the Supreme Court of New South Wales, the Court of Appeal and ultimately appellate challenges before the High Court) and the reconciliation of that tension, have been considered in Fish v Solution 6 Holdings Ltd (2006) 80 ALJR 959 (' Fish '); Batterham v QSR Limited [2006] HCA 23 ; (2006) 80 ALJR 995 (' Batterham ') and Old UGC Inc v Industrial Relations Commission of New South Wales in Court Session [2006] HCA 24 ; (2006) 80 ALJR 1018 ( 'Old UGC Inc '). Those cases do not involve a question of construction of an Act of the Commonwealth Parliament or whether the source of a denial of jurisdiction to the State Commission or Court involves invalidity in the provisions of the State Act conferring jurisdiction, by reason of s 109 of the Constitution . In other words, they do not engage the question of a State Act expressly seeking to limit federal jurisdiction (other than questions going to a possible or purported limitation upon the exercise of appellate jurisdiction by the High Court). 53 In Fish and Batterham the majority concluded that s 179 was not enlivened according to its terms as no decision or purported decision had been made by the Commission in Court Session. In Old UGC Inc , the s 179 point was not argued before the High Court. These cases are not authority for the proposition that notwithstanding s 179 (enlivened according to its terms), a supervisory court has jurisdiction to grant orders of prohibition directed to the Industrial Court to prevent the threatened making of a decision beyond jurisdiction or the conduct of proceedings that might lead to an order beyond jurisdiction as the point was not alive. Moreover, these cases do not in terms deal with constraints upon the exercise of federal jurisdiction. 55 The further consideration and, it seems to me, the real focus of inquiry, is whether the Federal Court ought to embark upon a consideration of the question raised by these proceedings in circumstances where the Industrial Court has not considered whether it has jurisdiction. If an assumption is made for present purposes that the Industrial Court might ultimately be found not to have the jurisdiction sought to be exercised, it nevertheless has jurisdiction to determine whether it has jurisdiction. The Industrial Court is, by s 152 of the IR Act (and by amendment of the Constitution Act 1902 of the State of New South Wales) a superior court of record equivalent in status to the Supreme Court of New South Wales. An important question, as a matter of comity, is whether this Court ought to hear and determine the controversy framed by these proceedings and, if satisfied that an inconsistency arises depriving the Industrial Court of jurisdiction to make orders pursuant to s 106 of the IR Act, proceed to make orders preventing the further conduct of the Industrial Court proceedings, before the Industrial Court has determined whether it has jurisdiction ( Fish per Heydon J [176] and [177]). 56 The question raised by this controversy is not simply one of whether there is threatened jurisdictional error in acting in reliance upon s 106 of the IR Act in respect of the proper isolation and application of one or more of the integers of the section itself, but a threshold question of constitutional inconsistency between the Commonwealth and State Acts resulting in invalidity in the provisions sought to be relied upon in the exercise of jurisdiction. It seems to me that the interests of the parties are served by the Federal Court considering and determining that matter, in the nature of a preliminary question. Since this proceeding joins parties comprising the Bank, those executives who acted for the Bank in the relevant transactions and all of the participants in the three Industrial Court proceedings, there seems to be utility in deciding the inconsistency question (and thus the validity of s 106 of the IR Act), as between these parties. In addition, the contention of the respondents that the Industrial Court ought to first determine its own jurisdiction as the repository of the power, needs to be qualified as each of the Industrial Court proceedings has been cross-vested to the Supreme Court of New South Wales. 57 Accordingly, I am not persuaded that an order for transfer ought to be made by reason of a want of jurisdiction in the Federal Court or on the footing that the Court ought not to embark upon a consideration of whether there is a constitutional denial of jurisdiction to the Industrial Court, before the relevant forum first determines whether jurisdiction is denied to it by reason of constitutional invalidity arising out of the contended inconsistency.