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. The second and third opponents are in a state of some uncertainty, because the summons is rather uncommunicative about the matters which will be argued in the proceedings. The second and third opponents would be entitled to ask, and the claimants would be obliged to provide, full particulars of the way in which the claimants intend to advance the proceedings when they come before the Court for hearing. The claimants have asked that the matter stand into the list of the Registrar of this Court in order that the hearing date can be fixed. I have a little hesitation in doing that because even today it is not entirely clear that the matter is ready for trial. It would never have been tried this day, as apparently some of the parties expected. It is not the practice of the Court to deal withsuch summonses, exceptional and urgent cases apart, on a Monday, but on a date fixed by the Registrar. With some hesitation, and in the expectation that the claimants will give full particulars within the next few weeks to the opponents, I will stand the 2 UNREPORTED JUDGMENTS matter into the Registrar's list. I will reserve to the second and third opponents full liberty to approach the Court to restore the matter to the Court's list in the event that the meandering course continues, that the issues are not defined, or if, for any other reason, the matter should appropriately be considered by a judge with full power to make necessary orders. If, for example, upon the definition of the issues it appears that the claimants are in difficulty by reason of the recent authority in Craig, then it will be open to the second and third opponents, within the leave which I now reserve, to have the matter brought back to the Court for the making of appropriate orders for peremptory relief. If, however, the matter is to proceed on a natural justice or procedural fairness ground, then it can be set down by the Registrar with a view to its being heard by the Court, with some measure of priority, being an application for prerogative type relief. The orders which I therefore make are: 1. Stand over the summons to be listed by the Registrar on a date to be fixed, after consultation by him with the parties; 2. Direct that the proceedings have some measure of expedition. That measure to be determined by the Registrar; 3. Order that the second and third opponents file any affidavit upon which they intend to rely within four weeks of this date; 4. Order that the claimant file any affidavit in reply within two weeks of the receipt of the affidavits of the second and third opponents; 5. Direct that the claimant provide proper particulars to the second and third opponents, of the nature of their claim in this Court; 6. Reserve liberty to any party to restore the matter to the list before a Judge of Appeal, if necessary in Vacation, for varying or supplementing these orders; and 7. Order that the costs of the mention before the Court today be the costs of the second opponent of the summons. 8. Grant liberty to the parties, if they agree, to amend the record so that the title is changed to refer to the officer of the second and third opponents in lieu of the persons named. Counsel for the claimant: T A Alexis Solicitors for the claimant: Rockliffs Counsel for the 1st opponent: S G Wilson Solicitors for the Ist opponent: J V Knight (State Crown Solicitor) Counsel for the 2nd opponent: No appearance Solicitors for the 2nd opponent: Douglas Haines Counsel for the 3rd opponent: No appearance Solicitors for the 3rd opponent: Mark Callahan