Industrial Relations Commission of New South Wales in Court Session CITATION : Taudevin v Egis Consulting Australia Pty Limited (No.2) [2000] NSWIRComm 121 APPLICANT: Lansell Ronald Taudevin PARTIES : RESPONDENT: Egis Consulting Australia Pty Limited FILE NUMBER: IRC 7025 of 1999 CORAM: Walton J Vice-President CATCHWORDS : Unfair contract - interlocutory judgment - reference to Full Bench pursuant to s193 of Industrial Relations Act 1996 - questions in notice of motion raised issues of constitutional law and important questions of jursidiction - parties consent of reference to Full Bench noted LEGISLATION CITED : Industrial Relations Act 1996 s193 HEARING DATES: 06/07/2000 DATE OF JUDGMENT: 06/21/2000 APPLICANT: Mr Benson of Counsel (Respondent on Motion) SOLICITOR: Dianne Banks Gilbert & Tobin FIRST RESPONDENT: Mr Wilkins (Respondent on Motion) Corrs Chambers Westgarth LEGAL REPRESENTATIVES: SOLICITOR: James Heard Australian Government Solicitor SECOND RESPONDENT: Mr Godwin of Counsel (Applicant on Motion) SOLICITOR: Peter Wilkins Corrs Chambers Westgarth JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J Vice-President WEDNESDAY 21 JUNE 2000 MATTER No IRC 7025 of 1999 LANSELL RONALD TAUDEVIN v EGIS CONSULTING AUSTRALIA PTY LTD & ORS Application under s.106 of the Industrial Relations Act 1996 JUDGMENT 1 On 13 April 2000, the President granted applications by each of the respondents to extend time for the filing of notices of motion pursuant to Rule 82 of the Industrial Relations Commission Rules 1996 to, inter alia, dismiss the proceedings against them: see Taudevin v Egis Consulting Australia Pty Limited [2000] NSWIRComm 63. Subsequently, on 18 May, his Honour listed the motions for hearing on 27 June 2000 and 6 July 2000, and directions were made for the filing of submissions and related matters. The Court was also informed at that time that notices pursuant to s78B of the Judiciary Act 1903 (Cth) had been served upon the respective Attorneys-General by the second respondent, the Commonwealth of Australia. 2 By notice of motion filed 25 May 2000 the second respondent moved the Court to refer three questions to the President for decision by a Full Bench of the Commission pursuant to s193 of the Industrial Relations Act 1996 ("the Act"). The questions arose from issues raised in the second respondent's earlier notice of motion. 3 Section 193 relevantly provides: 193 References by members to Full Bench (1) A member of the Commission may refer to the President, for decision by a Full Bench of the Commission: (a) a matter (or part of a matter) before the member, or (b) a question arising in a matter before the member. (2) The President is to determine whether or not a Full Bench should deal with the matter or question. 4 The questions were as follows: (a) Whether as a matter of construction, the arrangement alleged between the second respondent and the applicant set out in the applicant's amended summons filed 10 March 2000 as supplemented by particulars given on 30 March 2000, is capable of attracting the jurisdiction of the Commission pursuant to s106 of the Act. (b) Whether the second respondent is immune from any exercise of the power in s106 of the Act in the circumstances set out in the applicant's amended summons filed 10 March 2000 as supplemented by particulars given on 30 March 2000 on the basis that in respect of those circumstances, so far as they involve the second respondent, the New South Wales parliament is not constitutionally capable of affecting the Commonwealth in the manner otherwise permitted by the section. (c) Whether the second respondent is immune from any exercise of the power in s106 of the Act in these proceedings on the basis that the New South Wales parliament is not constitutionally capable of conferring on the Commission power to grant the relief sought by the applicant against the second respondent as this would involve the conferral of non-judicial power on a court exercising federal jurisdiction, contrary to Chapter III of the Constitution. 5 The second respondent was granted leave to amend the notice of motion by deleting the first question. 6 In the absence on leave of the President I heard the motion. I have determined that the questions, in the amended notice, should be referred to the President for a decision of the Full Bench of the Commission pursuant to s193(1) of the Act as the questions raise constitutional issues and important questions as to the jurisdiction and power of the Court under s106 of the Act. The Court has also had regard to the consent given by the applicant in the proceedings to the application for a reference. 7 I have also been requested by the President to advise the parties that he has determined, pursuant to s193(2) of the Act, and for similar reasons, to refer the matter to a Full Bench of the Commission. The Full Bench shall hear the amended notice of motion at 10.00am, 27 June 2000. The balance of the motions which were set down for hearing on 18 May will be heard by the President on 27 June, if time is available after the conclusion of the hearing before the Full Bench, and on 6 July. 8 The second respondent is directed to file and serve reference books by 4pm on Friday 23 June 2000 which shall contain all material filed relevant to the issues to be determined by the Full Bench. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.