MULTICON ENGINEERING PTY LTD v FEDERAL AIRPORTS CORPORATION [1997] NSWCA 214

MULTICON ENGINEERING PTY LTD v FEDERAL AIRPORTS CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL and STEIN JJA

12 May 1997, 3 June 1997

[1997] NSWCA 214

Appeal — Issue not raised at trial — Issue of law not of fact.

Constitutional Law (Commonwealth) — Judicial power of Commonwealth — State courts vested with federal jurisdiction — Delegation of exercise of jurisdiction — Order for reference pursuant to SCR Pt72 — Adoption variation or rejection of report — Nature of hearing under SCR Pt72 r13 — Whether order for reference valid — Whether order for adoption of report valid.

Powell JA The Court has been called upon to deal with two Notices of Motion, the first, filed on behalf of the Appellant on 8 April 1997, in which the Appellant sought orders, in substance:

1. granting the Appellant leave to amend its Notice of Appeal by amending the craftsmanship of two existing grounds of appeal, grounds 31 and 32 and by adding an additional ground of appeal, 32A which ground of appeal and additional ground of appeal have been described as "constitutional grounds"; and

2. providing for the determination of those "constitutional grounds" separately from, and prior to the hearing of, the balance of the grounds of appeal raised in the Notice of Appeal.

and the second, filed on behalf of the Respondent on 6 May 1997, by which the Respondent sought an order that grounds 31 and 32 of the Notice of Appeal be struck out.

In order that one might understand the circumstances which have given rise to the filing of the two Notices of Motion and the nature of the "constitutional grounds" which the Appellant seeks to have determined in the appeal, it is necessary that one record some of the history of the proceedings.

Although - because of the paucity of the material which has been placed before the Court for the purposes of this application - it is not possible to go into any great detail as to the background facts giving rise to the proceedings, it would appear that the proceedings arose out of a contract which was entered into between the Appellant and the Respondent in 1990, by which contract the Appellant undertook to catty out certain structural steel work for the Respondent. It would appear that the contract had been entered into following an invitation by the Respondent to the Appellant to tender for the structural steel work contract.