CI & D MANUFACTURING PTY LIMITED v THE REGISTRAR INDUSTRIAL COURT OF NEW SOUTH WALES [1995] NSWCA 75

CI _ & D MANUFACTURING PTY LIMITED vy THE REGISTRAR INDUSTRIAL COURT OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P 4 December 1995

[1995] NSWCA 75

PRACTICE & PROCEDURE — prerogative relief — what constitutes "record" — Craig v South Australia (1995) 69 ALJR 873 (HC) refd to — procedural orders made.

INDUSTRIAL LAW — judicial review — Industrial Court — privative provision — examination of proceedings beyond record — procedural orders.

Kirby P. This is a summons for prerogative type relief which has been meandering very slowly through the list of the Court. Today is, sadly, the third occasion on which it has been mentioned before the Court. Alas, the past pattern has been repeated. The affidavit by the claimant was only filed on Friday last. Unsurprisingly, it has not come to the papers of the judges. It was only received by the second and third opponents last Friday.

A summons for judicial review meanders through the list

On the last occasion the matter was before the Court, 13 November 1995, I called to the attention of the then representative for the claimants the recent decision of the High Court of Australia in Craig v South Australia( 1995) 69 ALJR 873 (HC), determining the content of the 'record' for the purpose of relief prerogative in nature. Unfortunately, my observations were not drawn to the notice of counsel for the claimants in time for him to familiarise himself with that decision. That being the case, the matter cannot proceed very far today.

In any case, I am informed that there is an intention on the part of the claimants to raise, in addition to the ordinary challenge to jurisdiction, a contention that the Industrial Court exceeded its lawful jurisdiction by denying natural justice or procedural fairness to the claimant. If the summons is proceeded with and if it is not rebuffed by the applicable private provision in the litigation, this will require an examination of what happened in the Industrial Court beyond the formal 'record' as defined in Craig.