Barter v Programmed Maintenance Services Ltd

Barter v Programmed Maintenance Services Ltd involves an application by the respondent, Programmed Maintenance Services Ltd, to refer a question of law to the Commission for determination. The dispute originates from a decision made by an arbitrator, which the respondent seeks to challenge. The matter was brought before the Commission, where the primary issue was whether the respondent could raise the challenged decision as a question of law while an appeal was pending.

The legal issues before the court centred on the appropriate mechanism for challenging a decision made by an arbitrator. Specifically, the court had to determine whether the respondent could bypass the appeal process and instead challenge the decision as a question of law. The court had to consider whether the matter was already before the appeal court and whether it was permissible to raise the same issue under the guise of a question of law while an appeal was ongoing. The court also had to consider the relevance and timeliness of the respondent's submissions in both the question of law file and the leave to appeal file.

In reaching its decision, the court noted that the central issue before the arbitrator had already been determined and that such a determination could be challenged on appeal. However, it was not appropriate for the President of the Commission to deal with the challenged decision as a question of law while the appeal was pending. The court emphasised the distinction between the two processes, referencing previous case law such as Dimmock v State of NSW. The court concluded that the issues confronting the respondent were appropriately matters for the appeal, and it was not suitable for the President to address them as a question of law. Therefore, the application for leave to refer the question of law was refused, and the respondent was ordered to pay the costs of the application. The court also directed the Registrar to ensure that the application for leave to appeal was determined as soon as possible.