AGU v Commonwealth of Australia

The proceeding before the Court of Appeal of New South Wales involved the applicant, AGU, and the respondent, the Commonwealth of Australia. The dispute concerned the severability of proceedings from a constitutional matter and the proper approach to the division of hearings under the Uniform Civil Procedure Rules 2005 (NSW).

The Court was required to determine whether a proceeding arising under the Constitution, and thus falling within the ambit of section 78 of the Judiciary Act 1903 (Cth), could be severed from other related proceedings. Furthermore, the Court had to consider the obligation under the Civil Procedure Act 2005 (NSW) to facilitate the just, quick, and cheap resolution of the real issues, and whether this obligation permitted or mandated the division of a hearing into separate parts, or if all issues were required to be heard concurrently.

The Court reasoned that while section 78 of the Judiciary Act 1903 (Cth) confers jurisdiction on State Supreme Courts in matters arising under the Constitution or involving its interpretation, it does not mandate that such matters must be heard separately from other civil proceedings. The Court emphasised the overarching duty imposed by the Civil Procedure Act 2005 (NSW) to achieve a just, quick, and cheap resolution. In this context, the Court found that dividing the hearing into separate parts was permissible, provided it served the overarching objective. The Court ultimately vacated a previous order and issued new directions regarding the filing of written submissions, while otherwise confirming existing orders and the hearing date.