Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Rail Corporation New South Wales v Brown [2012] NSWCA 296
• Hearing dates: 30 July 2012
• Decision date: 20 September 2012
• Before: Bathurst CJ at [1]; Beazley JA at [70]; Basten JA at [71]

Decision

(1)Set aside Order 3 of the orders made by the Full Bench.

(2)Declare that the third respondent, the Transport Appeal Board, has no jurisdiction to hear an appeal by the first respondent, Mr Robert Brown, against his dismissal from the applicant's employment on 1 July 2011.

(3)Order that the first respondent pay the applicant's costs of the summons.

[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: ADMINISTRATIVE LAW - judicial review - jurisdictional error - whether incorrectly deciding Transport Appeal Board empowered to extend time limit for appeal involved jurisdictional error; ADMINISTRATIVE LAW - jurisdiction - preconditions for the exercise of jurisdiction - whether compliance with time limit a jurisdictional fact; PROCEDURE - documents or pleadings - notice of appeal - timing - whether notice of appeal received outside statutory time limit "lodged" within time; STATUTORY INTERPRETATION - principles - words to be given ordinary and grammatical meaning having regard to context and legislative purpose - whether Full Bench erred in imputing policy to legislature; STATUTORY INTERPRETATION - Transport Appeal Boards Act 1920 s 13 - whether compliance with time limit a pre-condition to valid appeal; STATUTORY INTERPRETATION - words and phrases - "lodged"
• Legislation Cited: Appeal Tribunal Act 1980; Government and Related Employees; Industrial Relations Act 1996; Interpretation Act 1987; Transport Appeal Boards Act 1980
• Cases Cited: Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; Angus Fire Armour (Australia) Pty Limited v Collector of Customs (NSW) (1988) 19 FCR 477; Australian Education Union v Department of Education and Children's Services [2012] HCA 3; Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292; Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 225 CLR 364; Chase Oyster Bar Pty Limited v Hamo Industries Pty Limited [2010] NSWCA 190; (2010) 78 NSWLR 393; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384; Commissioner of Police v Dalziel [2011] NSWCA 290; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; D'Arcy v Department of School Education [1994] NSWCA 77; Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523; Director General, NSW Department of Health v Industrial Relations Commission (NSW) [2010] NSWCA 47; (2010) 77 NSWLR 159; Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269; Hong v Minister for Immigration and Multicultural Affairs [1998] FCA 341; (1998) 153 ALR 327; Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1; Kirk v Industrial Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531; Matkevich v New South Wales Technical and Further Education Commission (1995) 36 NSWLR 718; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7; (1938) 59 CLR 369; Patterson v Public Service Board of New South Wales [1984] 1 NSWLR 237; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681; Roadshow Films Pty Limited v iiNet [2012] HCA 16; Secretary Department of Health (NSW) v Harvey (1990) 34 IR 58; Swan Television and Radio Broadcasters Limited v Satie [1999] WASCA 79; Tasker v Fullwood [1978] 1 NSWLR 20; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439; Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386; Wentworth Securities Ltd v Jones [1980] AC 74
• Category: Principal judgment
• Parties: Rail Corporation New South Wales (applicant); Robert Brown (first respondent); Industrial Court of New South Wales (second respondent); Transport Appeal Board (third respondent)
• Representation: Counsel: Mr P Ginters (applicant); Ms C Howell (first respondent); Solicitors: Rail Corporation New South Wales (applicant); Slater & Gordon (first respondent)
• File Number(s): 2012/125560

Decision under appeal

• Citation: [2012] NSWIRComm 14
• Date of Decision: 2012-03-14 00:00:00
• Before: Boland J, President, Walton J, Vice-President, Haylen J
• File Number(s): IRC 1651 of 2011

Judgment

1 BATHURST CJ: By a further amended summons filed by leave of this Court on 30 July 2012, the applicant, Rail Corporation NSW ("RailCorp") sought an order in the nature of certiorari against the second respondent, the Industrial Court of NSW, quashing a decision of the Full Bench of that Court ("the Full Bench") in matter IRC 1651 of 2011. RailCorp also sought a declaration that the third respondent, the Transport Appeal Board ("the Board") did not have jurisdiction to hear an appeal by the first respondent, Robert Brown ("Mr Brown") against his dismissal from RailCorp's employment pursuant to the Transport Appeal Boards Act 1980 ("the TAB Act").

2 RailCorp also sought orders that the matter be remitted to the Full Bench to deal with according to law or, alternatively, orders prohibiting the Full Bench and the Board from "acting upon, giving effect to, further proceeding upon or enforcing" any decision in the matter.

Background

3 Mr Brown immediately prior to his dismissal was employed by RailCorp as a train driver. On 1 July 2011, Mr Brown was given notice of his dismissal by letter. That letter indicated to Mr Brown that he had a right of appeal to the Board and that any appeal was required to be lodged with "the Industrial Registrar, NSW Industrial Relations Commission, Level 1, 47 Bridge Street, Sydney, NSW, 2000 within twenty one (21) days after receipt of this Notice". It was common ground that the 21 days expired on 21 July 2011.

4 Mr Brown consulted his union which apparently provided him with a form of Notice of Appeal which contained incorrect details of the address of the Secretary of the Board. Mr Brown sent the Notice of Appeal to the incorrect address by express post on 18 July 2011.

5 The Notice of Appeal so forwarded was returned to Mr Brown on 25 July 2011 marked "Not at this address". Mr Brown thereafter consulted his union who arranged to lodge a Notice of Appeal at the correct address on the same day, 25 July 2011, which was outside the 21 day period.

6 The Board held it had jurisdiction to hear the appeal. It held that the 21 day time limit for the lodgement of appeals could not be extended and so the second Notice of Appeal lodged was ineffective. However, it held the first Notice of Appeal was lodged within time.

7 RailCorp appealed from that decision to the Full Bench. Section 23A of the TAB Act permitted an appeal to that Court on a question of law.

8 On appeal the Full Bench held that the Board had erred in law in holding that the first Notice of Appeal had been lodged within time. However, it held that s 13 of the Act did not require that appeals lodged outside the 21 day period be invalid. In these circumstances, although the Full Bench gave leave to appeal, it dismissed the appeal and remitted the matter to the Board to deal with any application of extension of time for appeal.

9 It is from these decisions of the Board and the Full Bench that relief is sought.

The relevant legislation

10 It is convenient at this point to set out the legislative context surrounding the issues raised by the summons.

11 The TAB Act was substantially amended in 2010. Up to that time Pt 2 of the Act set out detailed provisions for the hearing of appeals. Section 11 provided that subject to the Act or any other Act proceedings of the Board could be formal or informal. Section 11A set out the nature of proceedings for promotion appeals, s 11B for disciplinary appeals, s 11C made provision for the manner in which informal proceedings were to be conducted, and similar provisions were made in s 11D for formal sittings. These provisions were repealed as a result of amendments made to the Act on 1 July 2010 and replaced by an amended s 11 and s 11A which provide as follows:

"11Sittings of Boards

(1)A Board is, unless it determines otherwise, to sit in Sydney for the hearing of appeals.

(2)Subject to this or any other Act, the proceedings before a Board for the purpose of hearing an appeal are to be treated as if they were proceedings before the Commission under Part 7 of Chapter 2 of the Industrial Relations Act 1996.

Note.On proceedings before the Commission, see in particular sections 162-166 of the Industrial Relations Act 1996. Rules may be made, and practice notes issued, under sections 185 and 185A, respectively, of that Act with respect to the practice and procedure of Boards.

11APersons entitled to be present at proceedings

The persons entitled to be present at proceedings of a Board are:

(a)the appellant whose appeal is being heard by the Board, and

(b)a person appointed by the employer against whose decision the appeal is brought, being a person appointed generally or in respect of a particular appeal or class of appeals, and

(c)the employee in whose favour the decision referred to in paragraph (b) has been made."

12 Part 3 of the Act deals with appeals. Section 13, which is the critical provision for present purposes, provides as follows:

"13Lodgment of appeals

An appeal shall be lodged with the secretary within 21 days after notice in writing of the decision to be appealed against is given to the appellant."

13 Sections 14 and 15 contain provisions relating to the time for hearing of appeals. They provide as follows:

"14Time for hearing of appeals

(1)Subject to subsection (2), an appeal shall be heard by a Board within 30 days from the date of its lodgment with the secretary.

(2)Where:

(a)the volume of work confronting a Board is such that an appeal cannot be heard conveniently within 30 days,

(b)owing to illness or unavailability of witnesses or the member of the Board, the appeal cannot be heard within 30 days,

(c)criminal proceedings have been commenced against an appellant for any offence (being criminal proceedings in respect of which the issues required to be determined are so closely related to the issues for determination by a Board that, in the opinion of the Board, it is reasonable to adjourn the hearing of the appeal pending the outcome of the criminal proceedings), or

(d)the parties to the proceedings before a Board agree that the hearing should be adjourned,

the Board may adjourn the hearing of the appeal to a date later than 30 days from the date of lodgment of the appeal with the secretary.

15Convening of a meeting of a Board

Upon the lodgment of an appeal, the secretary shall convene a meeting of a Board and shall cause to be given to the appellant at least 7 days' notice of the hearing of his or her appeal."

Thus, the appeal must be heard within 30 days unless the Board does not have the capacity to hear it conveniently within that time or the parties agree to an adjournment.

14 Sections 23 and 23A of the Act deal with decisions on appeal and decisions on questions of law. They provide as follows:

"23Decisions on appeals

(1)A Board may, in relation to an appeal, decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit.

(2)Except as provided by section 23A, the decision of a Board in respect of an appeal is final and is to be given effect to by the Authority against whose decision the appeal was made.

23AAppeals on questions of law

(1)A party to a promotion or disciplinary appeal may, subject to subsection (3), appeal to the Full Bench of the Commission in Court Session against any decision of a Board in the proceedings on a question of law.

(2)On an appeal under this section, the Full Bench of the Commission in Court Session may:

(a)remit the matter to the Board for determination in accordance with the decision of the Full Bench, or

(b)make such other order in relation to the appeal as seems fit.

(3)Part 7 of Chapter 4 of the Industrial Relations Act 1996 applies to an appeal against a decision of a Board under this section in the same way as it applies to an appeal against a decision of the Commission under section 197B of that Act."

15 Section 23A was introduced by amendment on 1 July 2010. Prior to that amendment, s 23(2) provided the decision of the Board was to be final.

16 As I have set out above, s 11 provides that proceedings for the purpose of hearing an appeal are to be treated as if they were proceedings before the Commission under Pt 7 of Ch 2 of the Industrial Relations Act 1996 ("the IR Act"). Part 7 of Ch 2 of the IR Act deals with public sector promotion and disciplinary appeals. Division 4 of that Part deals with appeal procedures, including the time for lodgement of an appeal, whilst Div 5 deals with the hearing of appeals.

17 Appeals to the Full Bench of the Industrial Court are dealt with in Pt 7 of Ch 4 of the IR Act. Section 197B of that Act provides that a party to proceedings under Pt 7 of Ch 2 may appeal to the Full Bench of the Industrial Court on a question of law. As s 11 of the TAB Act provides that proceedings before the Board for the purpose of hearing an appeal are to be treated as if they were proceedings before the Commission under Pt 7 of Ch 2 of the IR Act, Pt 7 of Ch 4 of that Act would apply to such an appeal.

18 Section 189 of the IR Act provides that an appeal to the Full Bench of the Industrial Court must be made within 21 days of the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows.

19 Section 185 of the IR Act contained in Pt 6 of Ch 4 confers a rule making power on the Commission. Rule 8 of the Rules made by the Commission deal with appeals. Rule 8.2 provides that an appeal must be made within 21 days or such further time as the Commission may allow.

The decision of the Board

20 The Board concluded ([2011] NSWTAB 19 at [15]) that s 13 of the TAB Act contained a mandatory time limit as a result of which the second Notice of Appeal could not "be accepted by the Board".

21 However, the Board noted that there was no dispute that the "first Notice of Appeal would have been lodged, at the wrong address, but within time". In these circumstances the Board held that the first Notice of Appeal was in fact lodged within time. Its reasoning was as follows:

"[20]The Board rejects the foregoing submission. Although the dismissal letter shows the correct address, the Appellant gave evidence in the witness box that he had not noticed that address because he went into shock when he read the dismissal letter. Later he went to the Union office to obtain a Notice of Appeal form and was given the wrong form (showing the former address of the Board). This was not his fault. It was representative error by the Union office and the Union conceded that way.

[21]The Board accepts, that the Appellant lodged his first Notice of Appeal within the 21 day statutory time limit. The fact that he sent it to the wrong address was not his fault but due to representational error."

22 It should be noted that the Board did not purport to extend time. Rather, it held that the first Notice of Appeal was in fact lodged within time.

The reasoning of the Full Bench

23 The Full Bench concluded that the Board erred in law in determining that the first Notice of Appeal had been lodged within time. The Court's conclusion on that issue was as follows ([2012] NSWIRComm 14):

"[29] ... The issue of whether or not an appeal had been 'lodged' as required by s 13, is an example of whether a finding of fact may also involve a question of law. The requirement to lodge the appeal with the Secretary of the TAB involves the act of bringing or sending the document to a particular place or to deposit the document in that place. The first notice of appeal was not, at any time, in the possession of the Secretary of the TAB by being sent or forwarded to the Registry office at its operating address. It cannot be doubted that the lodging of a notice of appeal is an essential step in the appeal process. Applying the approach in Azzopardi, whether there is any evidence of a particular fact, is a question of law: here, there was no evidence of lodgement and, therefore, the TAB fell into error when it decided the legal question that the first notice of appeal had been lodged with the Secretary of the TAB. The same analysis applies to the finding that the appeal was also lodged within 21 days - it was never received."

24 However, the Full Bench concluded that an appeal lodged outside the 21 day period was not necessarily invalid and that the Board had the power to extend the 21 day period prescribed by s 13 of the TAB Act. The Full Bench accepted that this conclusion was contrary to decisions of this Court in Patterson v Public Service Board of New South Wales [1984] 1 NSWLR 237, Secretary Department of Health (NSW) v Harvey (1990) 34 IR 58 and Matkevich v New South Wales Technical and Further Education Commission (1995) 36 NSWLR 718, all of which decisions held that compliance with a time limit in a similarly worded provision to s 13 of the TAB Act, s 55(1) of the Government and Related Employees Appeal Tribunal Act 1980, was a condition precedent to a valid appeal. However, the Full Bench expressed the view that these decisions had to be treated with caution having regard to the approach to statutory construction referred to in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71]. To understand the Full Bench's reasoning, it is necessary to set out pars [55]-[64] of its judgment in full:

"[55]It is important, however, to return to s 23A(3), set out in full in [12]. In short, Pt 7, Ch 4 of the IR Act applies to an appeal against a decision of the TAB in the same way as it applies to an appeal against a decision of the Industrial Relations Commission under s 197B of the IR Act. Section 197B of the IR Act deals with appeals on questions of law in relation to public sector promotional and disciplinary matters. It allows appeals against any decision of the Commission in the proceedings on a question of law but those proceedings are now conducted under Pt 7, Ch 2 of the IR Act .

[56]Importantly, Pt 7 of the IR Act contains s 189, a section that provides for the time and procedure for making appeals under that Part and thus sets the time and procedure for making appeals under s 197B. Section 189(1) provides that an appeal to the Full Bench of the Commission under Pt 7 'must be made within 21 days after the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential member allows.' If full effect is given to s 23A(3), s 189 of the IR Act applies and the appeal time may be extended. This is a significant departure from the legislative scheme dealt with in the older cases, such as Patterson.

[57]The insertion of sub-section (3) into s 23A of the Act appears to be, at least, some recognition by the legislature of the harshness of applying a strict time limit approach to promotion and disciplinary appeals under the TAB Act. The TAB Act has, therefore, specifically reversed the approach previously adopted over a period of time in relation to the GREAT Act and the same type of appeal provisions. The question then arises whether, in the transfer of the jurisdiction of the previous Transport Appeal Boards to the Industrial Commission of New South Wales in 2010, there was also brought about a changed approach to the time for lodging appeals to the TAB itself. As noted in Matkevich, the approach in Electric Light and Power and Hussein becomes relevant. In Electric Light, the court at p 559 stated:

S 3 of the Purchase Act takes the course of referring a particular matter for hearing and determination to an existing court established as part of the judicial system of the State, the proceedings of which are regulated by a statutory enactment and a body of rules, and the authority of which is amplified by some, and qualified by other, provisions of the enactment, one qualification being the duty to state a case upon a question of law if required by a party. When such a course is adopted it is taken to mean, unless and except in so far as the contrary intention appears, that it is to the court as such that the matter is referred exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected. There are well-known passages in National Telephone Co Ltd v Postmaster-General (1913) AC 546, which it may be as well to quote. Viscount Haldane LC said:

When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decisions likewise attaches. (at p 552)

Lord Parker of Waddington said:

Where by statute matters are referred to the determination of a court of record with no further provision, the necessary implication is, I think, that the court will determine the matters, as a court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same. (at p 562).

Lord Shaw of Dunfermline said:

In the general case, when a court of record ... becomes possessed, by force of agreement and statute, of a reference to it of differences between parties, the whole of the statutory consequences of procedure before such a court ensue. (at p 557).

That passage in Electric Light was applied in relation to the jurisdiction of the Industrial Commission of New South Wales in Hussein.

[58]Are there relevant provisions in the IR Act that may be considered in this construction exercise? Section 185 of the IR Act empowers the making of rules of the Commission. At the time of the matter coming before the TAB, the February 2010 Rules applied to the Commission and r 8.2 provided for an appeal to be made within 21 days after the date of the decision appealed against or 'within such further time as the Commission may allow.' It might be argued that the approach in Electric Light and Hussein would lead to the situation that, where the legislature had conferred the jurisdiction of the TAB on the Industrial Commission then, absent any provision clearly to the contrary, the jurisdiction of the Commission and its practices and procedures apply to such proceedings. Thus, an appeal made to the TAB may be the subject of an application for extension of time pursuant to r 8.2. Whether or not that is the result of conferring the TAB jurisdiction on the Commission inevitably leads to a fresh consideration of the specific provisions in the TAB Act to establish if these rules are to be read down or to be treated as inapplicable. We do not intend to undertake that exercise but it is sufficient for present purposes to note that, as a guide to the meaning of s 13, a statutory construction that treats non-compliance with the 21-day period as not rendering an appeal invalid would operate consistently with the further appeal provision from the TAB to the Industrial Court on a question of law. It is also relevant that the TAB Act treats appeal proceedings before the Board as proceedings in the Industrial Relations Commission. As Basten JA said in Lambert at [63] consideration of the broader context of a statutory appeal may include reference to powers conferred on that court hearing the appeal and may also require reference to procedural provisions, which give it colour and context.

[59]It is to be observed that s 23A does not directly set down any time limit for appeals on the questions of law to this Court but having regard to the approach of the Court of Appeal in Patterson and Harvey, emphasising the apparent comity of the appeal time limits both for appeals to GREAT and appeals from that Tribunal to the Court of Appeal, then it appears to be a decidedly odd result that more flexibility would be given to an appeal to the Court than an appeal to the Tribunal. It perhaps should be observed that s 100B of the IR Act (under Pt 7, Ch 2 and dealing with public sector promotion and disciplinary appeals), provides a time limit for lodging promotion appeals in language that states that such an appeal 'must be lodged' in relation to a promotion appeal within 21 days after the date of the Notice referred to in the statute or in relation to a disciplinary appeal, within 28 days of notification of the decision. The use of the word 'must' and the different time limits for promotion and disciplinary appeals has not been reflected in the TAB Act.

[60]The general purpose of the Act is to provide employees with statutory rights of appeal in promotion and disciplinary matters. The Act lays down administrative procedures for raising and determining such appeals. The Act also seeks to have the appeal process completed in a timely manner. The appeal proceedings before the TAB are to be treated as if they were proceedings before the Industrial Relations Commission. Nothing arises from these provisions that compels a conclusion that the 21-day period for lodging an appeal was intended to erect an immovable barrier to appeals lodged outside that period. The construction exercise, unfortunately, is not assisted by a lack of consistency and language between the public sector provisions in Pt 7, Ch 2 of the IR Act and similar provisions found in the TAB Act.

[61]As to issues of policy, it is likely that the legislature would want any disciplinary appeal to be dealt with promptly. That policy approach is not necessarily frustrated by a capacity to allow appeals lodged at a later time, although considerations of substantial compliance in achieving justice between the parties will be likely to arise. Consistency and harmony with the operation of s 197B of the IR Act is also a factor: this issue appears to be a major consideration in the older judgments in Harvey and Patterson.

[62]When considering concepts of fairness and justice in the context of the Act, it is clear that this valuable right of appeal might be lost in circumstances where proper efforts have been made to comply with the 21 days period. Mr Brown's case and the Tenedora case are clear examples of this. Minor acts of non-compliance that do not prejudice the employer in any significant way may be accommodated.

[63]It must be accepted, however, that the construction of s 13 is not without its difficulties and some doubt surrounds the nature of the 21-day period. When s 13 of the Act is approached as required by Project Blue Sky, the considerations appear to fall on the side of treating the 21-day period as not requiring appeals lodged outside that period to be invalid. Such invalidity does not clearly appear to be the purpose of the legislation - it is broadly concerned with appeal rights at two levels rather than limiting appeal rights. Indeed, it cannot be concluded that it was a purpose of the legislature that an act done in breach of s 13 should be invalid. Thus, the principle referred to by Kirby P in Cole has real significance for the present statutory construction exercise. The TAB Act is to be treated as beneficial legislation conferring valuable appeal rights on employees: those rights should not be diminished where any doubt exists and a construction should be favoured that enhances the right of appeal. That approach accords with the general purposes of the TAB Act.

[64]In concluding that s 13 of the Act does not treat as invalid an appeal lodged outside of the 21 days period in appropriate circumstances, it follows that the appeal by RailCorp as to jurisdiction must fail although the decision of the Tribunal was wrong in law in treating the appeal as lodged within 21 days. The questions raised, however, have great significance for those covered by the provisions of the Act and the issues have been complex: in those circumstances, it is appropriate that Leave to Appeal be granted but the Appeal be dismissed. Because this Court is dealing with a confined Appeal under s 23A, it is not open for the Court to order that time be extended so that Mr Brown's appeal can proceed before the TAB. That is a matter that must be dealt with by the TAB and it is, therefore, appropriate, that the appeal be remitted to the TAB to deal with any Application for Extension of Time that is made on behalf of Mr Brown and if Time to Appeal is extended, to deal with the merits of his appeal."

25 Although the reasoning with respect is not entirely clear, it seems that whilst reference is made to the power contained in the IR Act to extend the time of appeal, the Full Bench did not rely on these provisions as conferring the power to extend time in s 13 of the TAB Act. Rather, the reasoning of the Full Bench seems to be, first, that a conclusion that the Board had power to extend the time period in s 13 of the TAB Act would enable that provision to operate harmoniously with proceedings directly brought to the Commission under Pt 7 Ch 2 of the IR Act (see par [58]) and, second, as a matter of policy valuable appeal rights should not be diminished where any doubt exists and a construction should be preferred which enhances the right of appeal.

26 In these circumstances the Full Bench made the following orders:

"(1)Leave to appeal is granted.

(2)The decision of the Transport Appeal Board is set aside but otherwise the Appeal is dismissed.

(3)The application by Mr Brown for reinstatement of employment is remitted to the Transport Appeal Board to deal with any Application for Extension of Time to Appeal and if necessary, the merit of the application for reinstatement."

The issues raised by the summons

27 The further amended summons essentially raises three issues:

(a) The construction of s 13 of the TAB Act; whether compliance with the time limits in s 13 is a pre-condition to an appeal to the Transport Appeal Board.

(b) Whether the Board erred in law in determining that the first Notice of Appeal was lodged within time.

(c) Whether the decision of the Full Bench to the effect that the Board had power to extend the time limit in s 13 of the TAB Act involved jurisdictional error.

The submissions of the parties

28 RailCorp contended that because the Notice of Appeal was not lodged within the time prescribed by s 13 the Board had no jurisdiction. It submitted that in reaching a contrary conclusion, the Full Bench fell into jurisdictional error.

29 So far as the construction of s 13 was concerned the applicant submitted that the word "shall" is "in mandatory form" and "a word of absolute obligation". It submitted that the Full Bench placed undue emphasis on issues of policy and concepts of fairness and justice and failed to consider the statutory text which must be given substantial and often determinative weight. It sought to support this contention by reference to conclusions of similar effect in relation to applications under the former s 478(1)(b) of the Migration Act 1958 which relevantly provided that applications under s 476 and s 477 of that Act must be made within 28 days of the date of notification of the decision: Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 390-391; Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 at [41]-[46].

30 At the hearing counsel for RailCorp acknowledged that in certain provisions of the TAB Act the word "must" was used, as distinct from the word "shall" used in s 13 (see, for example, s 24(2) of the TAB Act) but submitted that that did not affect the conclusion that compliance with the time limit was a pre-condition to the exercise of jurisdiction to entertain the appeal.

31 RailCorp also submitted that this construction was supported by what it described in its submissions as the structure of the Act. It submitted as a matter of construction the time limit was an essential jurisdictional precursor to the ability of the Board to entertain an appeal. It submitted that the Full Bench was in error in its reliance on s 23A of the Act, submitting that an appeal to the Board was only treated as before the Commission for a limited purpose: "the purposes of hearing an appeal". It pointed out that s 23A was dealing with an appeal from a decision of the Board to the Full Bench, not an appeal to the Board.

32 The applicant submitted that the legal and historical context in which the legislation was passed supported the construction for which it contended. It pointed to the similarity of s 13 and s 55(1) of the Government and Related Employees Appeal Tribunal Act 1980 (see par [24] above). It pointed out that in D'Arcy v Department of School Education [1994] NSWCA 77, Kirby P, with whom Mahoney and Priestley JJA agreed, called for reform to s 55(1) of that Act to permit the time for filing a notice of appeal to be extended and that he repeated this call in Matkevich supra. It pointed out that despite these calls and the significant amendments to the TAB Act which took place in 2010, there was no amendment to expressly provide for such a right of appeal.

33 So far as the decision of the Board was concerned, RailCorp contended that it involved an error of law either on the basis that the facts found by the Tribunal demonstrated as a matter of law the statutory criterion contained in s 13 was not made out or, alternatively, there was no evidence to suggest that it had been.

34 RailCorp submitted that in finding an appeal was lodged within time the Board committed jurisdictional error. It further submitted that even if as a matter of construction the Board had jurisdiction to determine the factual question of whether the Notice of Appeal was lodged within time (see Parisienne Basket Shoes Pty Limited v Whyte [1938] HCA 7; (1938) 59 CLR 369), it committed an error of law as the Full Bench correctly identified.

35 RailCorp contended that whilst the Full Bench was correct in concluding that the Board committed an error of law in reaching its conclusions, it erred in concluding that as a matter of construction the Board had power to extend the time for appeal. It contended this was a jurisdictional error for which this Court could grant relief.

36 In his written submissions Mr Brown did not seek to support the reasoning of the Board. However, he submitted that the Full Bench was correct in its conclusion that there was power to extend time to appeal. He submitted that the use of the word "shall" demonstrated a less strict approach than would arise if the word "must" was used. He submitted that the construction adopted by the Full Bench would ameliorate harsh results which would occur if an employee lost the right to appeal through no fault on his or her part. He submitted beneficial legislation should not be construed in that way. Further, he relied on s 23A of the TAB Act and submitted it would be an odd result if greater flexibility was given to appeals to the Industrial Court than to the Board.

37 Mr Brown contended that the decision of this Court in Patterson supra and the cases which followed it were not binding on this Court in construing the TAB Act. Further, he contended that these decisions paid inadequate attention to the use of the word "shall" in the section in question as distinct from the word "must" and the beneficial purpose of the legislation in conferring a right of appeal. In these circumstances he contended that to the extent necessary the Court should hold that these cases were wrongly decided.

38 In submissions delivered after the conclusion of the hearing Mr Brown contended that the Board had power to determine the question of whether an appeal had been lodged within time, relying on Parisienne Basket Shoes supra and the judgment of McDougall J in Chase Oyster Bar Pty Limited v Hamo Industries Pty Limited [2010] NSWCA 190; (2010) 78 NSWLR 393 at [170]-[172]. He contended that in those circumstances the Full Bench was correct in deciding that the Board had jurisdiction to determine whether Mr Brown had sufficiently complied with s 13 of the TAB Act.

Consideration

(a)The construction of s 13 of the TAB Act

39 As has recently been pointed out by the High Court on a number of occasions, the process of construction begins with the construction of the ordinary and grammatical meaning of the words in question, having regard to their context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3 at [26]; Roadshow Films Pty Limited v iiNet [2012] HCA 16 at [22]; Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [41], [45]-[48].

40 Further, although the legislative purpose in enacting the provision and the mischief to be remedied are factors which are to be taken into account in construing the provision in question (see the cases cited above; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408; Interpretation Act 1987 s 33, s 34) it is not for a court to construe its own idea of a desirable policy, impute that to the legislature and then characterise it as a statutory purpose: Australian Education Union supra at [26] and the cases there cited; Alcan supra at [46].

41 Mr Brown was correct, in my opinion, in his submission that a consideration of whether the word "shall" in s 13 is mandatory or directory is not of assistance in the process of construction. First, as was pointed out in Project Blue Sky Inc supra at [93] and earlier in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24, the "classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. ... The classification is the end of the inquiry, not the beginning" (Project Blue Sky Inc supra at [93]). Second, s 13 of the TAB Act does not mandate or direct anything. It merely provides a time limit for lodging an appeal. The issue is whether compliance with the time limit is a pre-condition to a valid appeal.

42 In my opinion s 13 does impose such a pre-condition. That can be demonstrated by a consideration of the alternative constructions. They are, first, either the section has no effect and an appeal would be validly instituted whenever lodged. Mr Brown correctly in my opinion did not contend for such a construction which would make the section meaningless. Alternatively, as the Full Bench apparently decided, it was appropriate as a matter of construction to read into the statute a power in the Board to extend the time for the lodgement of a Notice of Appeal.

43 In Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, a case involving the entitlement of transferred prisoners to advantages or privileges to which they may have become entitled in respect of a reduction of their sentence under the law of the transferring state, Hope JA, with whom Mahoney JA agreed, cited with approval the following passage from the speech of Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106:

"My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts."

44 McHugh JA in reaching a similar conclusion made the following remarks (at p 302):

"The Interpretation Act 1987, s 33, directs the Court to give legislation the construction which promotes its purpose or object. In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, I set out in some detail (at 421-424) the principles applicable in giving legislation a purposive construction. The passage is too long to set out at length. But in the course of that judgment I pointed out that the grammatical meaning of a provision is not to be taken to represent Parliament's intention as to its meaning when the context or the purpose of the provision raises a real doubt about the applicability of the grammatical meaning. If purpose or context do raise a real doubt as to whether Parliament intended the grammatical meaning to apply, a court is entitled to depart from that meaning. Moreover, if the grammatical meaning gives rise to injustice or anomaly, it may strengthen the conclusion that theParliament did not intend the grammatical or literal meaning to apply.

Once the court concludes that the grammatical meaning does not accord with the purpose of the legislation, ' ... it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used': Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 at 201. But as the cases to which I referred (at 422-423) in Kingston v Keprose Pty Ltd show, it is not only when Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.

In Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 this Court applied the principles formulated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106 concerning the circumstances in which a court may read words into a legislative provision to give effect to its purpose. Lord Diplock said that a court may read words into a statutory provision when three conditions are fulfilled. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect."

45 In R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681, Spigelman CJ explained the limits to the approach in Wentworth Securities supra. His Honour made the following remarks:

"[6]In order to construe the words actually used by parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used. Judicial statements which appear to have been prepared to countenance something more than this, should be so understood.

...

[11]The three conditions set out by Lord Diplock should not be misunderstood. His Lordship did not say, nor do I take any of their Honours who have adopted the passage to suggest, that whenever the three conditions are satisfied, a court is at liberty to supply the omission of the legislature. Rather, his Lordship was saying that in the absence of any one of the three conditions, the court cannot construe a statute with the effect that certain words appear in the statute.

[12]As I understand the recent cases, they are not authority for the proposition that a court is entitled, upon satisfaction of the three conditions postulated by Lord Diplock, to perfect the parliamentary intention by inserting words in a statute. The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on a literal construction, so apply or operate. However, the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based."

46 In the present case the three conditions laid down by Lord Diplock are not satisfied. First, the relevant mischief was the absence of an avenue to appeal by a dismissed transport worker. That mischief was remedied by Pt 3 of the Act. In remedying that mischief the legislature imposed the time limit for the making of an appeal and gave the Board no power to extend it. The Full Bench erred in granting the Board the power which the legislature did not see fit to give it.

47 Second, there is no reason to think that Parliament overlooked the issue. This is particularly the case when the Legislature did not confer such a power on the Board when it amended the legislation in 2010 in the knowledge of the limitations placed on similar provisions by this Court in Patterson supra and the cases which followed it. Third, the Court cannot say with certainty what words would have been used by Parliament to overcome the omission.

48 Finally, even if the pre-conditions laid down by Lord Diplock were made out, it does not seem to me that the words of s 13 are open to the construction "within 21 days or such further time as the Board allows".

49 It does not seem to me that s 11 of the TAB Act assists in construing s 13 in the manner contended for by Mr Brown or by the Full Bench. Section 11(2) was inserted in 2010 to replace the procedural provisions dealt with in s 11A to s 11D of the Act. Section 11 provides that in lieu thereof proceedings before the Board for the purpose of hearing an appeal are to be treated as if they are proceedings before the Commission under Pt 7 of Ch 2 of the IR Act. The reference in s 11 to "proceedings before a Board" and the phrase "for the purpose of hearing an appeal" in my view show that s 11 is limited to the incorporation of procedural matters on the hearing of an appeal rather than the institution of such an appeal.

50 This is supported, in my opinion, by a consideration of Pt 7 of Ch 2 of the IR Act. Division 1 is primarily a definitional Division. Division 2 which deals with promotion appeals deals not only with the right of a public sector employee (as defined) to appeal against a promotion decision (s 94) but also contains provisions relating to notification of vacancies in particular offices and the effect of failure to notify. Division 3 deals with disciplinary appeals which in effect are given an extended meaning by s 97. By contrast a disciplinary appeal under the TAB Act is defined by reference to a disciplinary appeal within the meaning of the Transport Administration (Staff) Regulation 2005.

51 Division 4 of Ch 2 of Pt 7 deals with procedure relating to the making of appeals. Significantly, the period for lodging notice of a disciplinary appeal under the IR Act is 28 days in contrast with the 21 days provided for in s 13 of the TAB Act. Further, s 100E imposes a requirement for conciliation prior to the hearing of an appeal, whilst s 14(1) of the TAB Act requires an appeal subject to s 14(2) to be heard within 30 days.

52 Having regard to the differences between the TAB Act and Ch 2 of Pt 7 of the IR Act, and noting the opening words of s 11(2) which provide that it is to be read "Subject to this ... Act", it does not seem to me that there was an intention to incorporate the whole of Ch 2 of Pt 7 into the operation of the TAB Act when the amendments to s 11 were made.

53 Section 11, in my opinion, has the effect of providing that the procedure relating to the hearing of appeals under Pt 7 of Ch 2 of the IR Act is to be the procedure adopted in respect of appeals under the TAB Act. That procedure is set out in s 162 to s 166 of the IR Act whilst s 185(4) empowers the Commission to make rules relating to the practice and procedure of promotion and disciplinary appeals including those under the TAB Act. No such rules had been made and it is not necessary to consider whether the Commission would have power to make a rule empowering the Board to extend the time for making an appeal under s 13 of the TAB Act.

54 The construction which I prefer is supported by the Note included in s 11 which, although not forming part of the Act, expressly refers to s 162 to s 166 and s 185 and s 185A of the IR Act.

55 It follows that the provisions of s 11(2) of the TAB Act do not empower the Board to extend the time for the lodgement of an appeal under s 13 of the Act.

56 Section 23A of the TAB Act also does not assist Mr Brown. It deals with appeals from the Board to the Full Bench. Although s 189 of the IR Act allows the Full Bench to extend the time for an appeal to it, it says nothing about an appeal to the Board.

57 The Full Bench, in my opinion, erred in reaching a contrary conclusion. To the extent that reliance is placed on s 11 and s 23A for the reasons I have given these sections do not lend support to the conclusion which the Full Bench reached. Further, to the extent that the Full Bench referred to the general purpose of the Act and issues of policy (see pars [60]-[63] of their judgment set out in par [24] above) in my opinion the Full Bench fell into the error identified in Australian Education Union and Alcan supra of formulating its view as to a desirable policy and imputing it to the legislature. The fact that time limits may operate unfairly in certain circumstances is not a ground for imputing an intention to the legislature that they could be extended.

58 It follows that the Board had no power to extend the time limit in s 13 and the Full Bench erred in reaching the contrary conclusion.

(b)Did the Board err in law in deciding the first Notice of Appeal was lodged within time?

59 The Full Bench was correct in answering this question in the affirmative. In the proceedings before the Board there was no dispute that the first Notice of Appeal was not in fact delivered to the office of the Industrial Relations Commission or received by the Industrial Registrar by 21 July 2011. In fact as the Full Bench pointed out, the Notice was returned to Mr Brown marked "Not at that address" on 25 July 2011, outside the 21 day period.

60 The Board notwithstanding these factual findings, held that it was lodged within 21 days. I have set out the conclusion reached by the Board in par [21] above. Although it is by no means clear, the reasoning involves either one of two propositions. First, the Notice of Appeal was lodged when it was placed in the post even though it was not received by the registry within the time specified, or that because it was sent to the wrong address as a result of a mistake, it was deemed to be lodged for the purpose of s 13.

61 Neither of these propositions can be sustained. As to the first, a document lodged or delivered to the wrong address is not a document lodged with the secretary as required by s 13, unless the secretary received it within time. For a document to be lodged with the secretary (defined as the Industrial Registrar) it must be delivered to him or her or at least received at the secretary's address: Angus Fire Armour (Australia) Pty Limited v Collector of Customs (NSW) (1988) 19 FCR 477 at 488-489, 491; Hong v Minister for Immigration and Multicultural Affairs [1998] FCA 341; (1998) 153 ALR 327 at 332; Swan Television and Radio Broadcasters Limited v Satie [1999] WASCA 79 at [33]. No such lodgement occurred in the present case.

62 Further, it seems to me that there is no basis to say a document was deemed to be lodged merely because it was mistakenly delivered to the wrong address. There is nothing in the statute to warrant such a conclusion.

63 The Board, therefore, erred in concluding that the first Notice of Appeal was lodged within time. Further, in my opinion, the Full Bench was correct in concluding this was an error of law. In Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439, a case involving s 32(1) of the Compensation Court Act 1984 which conferred "a right of appeal upon a party aggrieved [by an award] in point of law", the plurality held the question of whether facts found by a trial court can support the legal description given to them by the trial court is a question of law: at [24]-[25]; see also Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126 at 138; Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7. In the present case the facts found by the Board could not support the legal conclusion that the appeal was lodged with the secretary within the time provided by s 13. Put another way, there was no evidence to support the finding that the Notice of Appeal was lodged within time. That is an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157; Commissioner of Police v Dalziel [2011] NSWCA 290 at [78]-[79].

64 Section 23A of the TAB Act permits an appeal against a decision of the Board in the proceedings on a question of law. In the present case the Board decided the facts found by it met the statutory criterion. That was a decision on a question of law: Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [28], [71]. The Full Bench, therefore, had jurisdiction to hear the appeal and to the extent it ordered the decision of the Board be set aside, the decision was correct.

65 It is not necessary in these circumstances to finally determine whether the error of the Board was a jurisdictional error. I am inclined to the view that the Board had jurisdiction to determine whether or not the appeal was lodged within time and that any error in that regard may be an error within jurisdiction: Parisienne Basket Shoes v Whyte supra at 389, 391-392; Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 225 CLR 364 at [31], [33]-[36]. (But in relation to inferior tribunals as distinct from inferior courts, see Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [58].)

66 However, as I have indicated above the decision of the Board was one not based on a finding of facts supported by logical grounds. To that extent the Board may well have fallen into jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [37]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [102]-[103]; Chase Oyster Bar Pty Limited v Hamo Industries Pty Limited supra at [102], [176]-[177]. However, it is not necessary to finally determine this issue.

(c)Did the decision of the Full Bench involve jurisdictional error?

67 The Full Bench was correct in setting aside the decision of the Board. However, it was in error in deciding that the Board had power to extend the time for the lodgement of an appeal and in remitting the matter to the Board to determine whether an extension should be granted.

68 In my opinion the order remitting the matter to the Board to consider whether an extension of time should be granted involved jurisdictional error. This is because the Full Bench had no power to make an order directing the Board to do something it had no power to do, namely, deal with Mr Brown's application for extension and, if necessary, the merits of his application for reinstatement. It thus made an order which was outside the theoretical limit of its functions and powers: Kirk v Industrial Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [72]; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177-179; Director General, NSW Department of Health v Industrial Relations Commission (NSW) [2010] NSWCA 47; (2010) 77 NSWLR 159 at [24]. Its decision is thus open to review.

Conclusion

69 In these circumstances I would make the following orders:

(1) Set aside Order 3 of the orders made by the Full Bench.

(2) Declare that the third respondent, the Transport Appeal Board, has no jurisdiction to hear an appeal by the first respondent, Mr Robert Brown, against his dismissal from the applicant's employment on 1 July 2011.

(3) Order that the first respondent pay the applicant's costs of the summons.

70 BEAZLEY JA: I agree with Bathurst CJ.

71 BASTEN JA: I agree with the orders proposed by the Chief Justice and with his reasons.

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Decision last updated: 20 September 2012