CFMEU v AWU (Queensland)

[1996] IRCA 251

DECISION NO:  251/96

CATCHWORDS

INDUSTRIAL LAW - JUDICIAL REGISTRARS - No power to deal with returns of subpoena or NOTICES OF MOTION which are not related to a matter in respect of which the powers of the Court have been delegated to the Judicial Registrars.

Industrial Relations Court Rules: ss Order 74 Rule 2

CFMEU - v  - AWU (Queensland) and others

NI 1126 of 1996

BEFORE:     PATCH  JR
PLACE:        SYDNEY
DATE:          23 APRIL 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

Matter No NI 1126 of 1996

BETWEEN:

CONSTRUCTION FORESTRY MINING
AND ENGINEERING UNION
Applicant

AND

THE AUSTRALIAN WORKERS UNION
OF EMPLOYEES, QUEENSLAND
First Respondent

QUEENSLAND CONFEDERATION OF
INDUSTRY LIMITED, UNION OF EMPLOYERS
Second Respondent

BEFORE:     PATCH  JR
PLACE:        SYDNEY
DATE:          23 APRIL 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The Notices of Motion be referred to a Judge.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

Matter No NI 1126 of 1996

BETWEEN:

CONSTRUCTION FORESTRY MINING
AND ENGINEERING UNION
Applicant

AND

THE AUSTRALIAN WORKERS UNION
OF EMPLOYEES, QUEENSLAND
First Respondent

QUEENSLAND CONFEDERATION OF
INDUSTRY LIMITED, UNION OF EMPLOYERS
Second Respondent

BEFORE:                 PATCH  JR
PLACE:  SYDNEY
DATE:  23 APRIL 1996

REASONS FOR JUDGEMENT

This matter is listed before me for the return of two subpoenae: one addressed to the Cairns Port Authority and the other addressed to Theiss Contractors Pty Limited.  Each of the respondents to the subpoenae have filed a Notice of Motion with supporting affidavit material seeking, amongst other things, that the subpoena be set aside and an order for costs, expressed as an order for "losses and expenses incurred in complying with the subpoena".

Frequently, Judicial Registrars have power to deal with subpoenae and Notices of Motion of the nature of those currently before me. This is because such matters are frequently related to either a claim for an amount of not more than $10,000 or a claim that the termination of an employee's employment was unlawful, or that the proposed termination of an employee's employment would be unlawful, whether because of the Industrial Relations Act or any other law (including an unwritten law of the Commonwealth or of the State or Territory). See Order 74 Rule 2.

However, I am informed that the matter which is now before me is not a matter of the nature of the proceedings referred to in Order 74.  There is no general delegation to Judicial Registrars to deal with matters such as subpoenae and Notices of Motion.

As I do not have the delegated power to deal with the matters, I am unable to deal with the Notices of Motion or the returns of subpoena. 

I, therefore, order that the Notices of Motion and returns of subpoena be referred to a Judge.

I should add that it is arguable that a Registrar of the Court (as opposed to a Judicial Registrar) would have the power to deal with these matters. However, I note that the proceedings are before the Full Bench of the Court, and in those circumstances in my opinion, it is preferable that the returns of subpoena and the Notices of Motion (particularly the Notices of Motion) be dealt with by a Judge.

I certify that the preceding two (2) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch.

Associate:       Renee Cauchi

Date:              14 June 1996

Appearances:
Counsel for the applicant:                  Mr S Rothman SC
Counsel for the respondent:               Mr A Herbert
Solicitor for the applicant:                 Mr Tom Roberts

Solicitor for the respondent:              W J Dillon