Corrective Services NSW v Mauganui Isaako

[2025] NSWIC 14

Industrial Court

New South Wales

Medium Neutral Citation:

Corrective Services NSW v Mauganui Isaako [2025] NSWIC 14

Hearing dates:

25 September 2025

Date of orders:

25 September 2025

Decision date:

25 September 2025

Before:

Chin J

Decision:

The proceedings are dismissed generally pursuant to UCPR r 13.4(1)(b)

Catchwords:

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — no reasonable cause of action disclosed

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — jurisdiction — order sought for Commission to be reconstituted as the Commission in Court Session for the purpose of taking evidence on commission — whether s 6(1) of the Evidence on Commission Act 1995 (NSW) invests the Commission in Court Session with jurisdiction to make orders to take evidence for use in unfair dismissal proceedings and in the absence of extant proceedings within the jurisdiction of the Court — proceedings dismissed

Legislation Cited:

Evidence on Commission Act 1995 (NSW), ss 6, 8, 9

Industrial Relations Act 1996 (NSW), Ch 2 Pt 6, ss 84, 153, 176(3)

Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters [1992] ATS 37

Uniform Civil Procedure Rules, Pt 13, r 13.4(1)(b)

Cases Cited:

British American Tobacco Australia Services Ltd v Eubanks for the United States of America (2004) 60 NSWLR 483

Cerrafon v Health Secretaryin Respect of Healthshare NSW [2025] NSWIRComm 8

Cox v Journeaux (No 2) (1935) 52 CLR 713

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Indochina Medical Co Pty Ltd v Nicolai [2013] NSWCA 436

Isaako v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2025] NSWIRComm 1076

Packer v The Greater Murray Area Health Service [2000] NSWIRComm 149

Category:

Principal judgment

Parties:

Corrective Services NSW (Applicant)
Mauganui Isaako (Respondent)

Representation:

Counsel:
J Wydell (Applicant)
D Nagle and A Guy (Respondent)

Solicitors:
NSW Department of Communities and Justice (Applicant)
McNally Jones Staff Lawyers (Respondent)

File Number(s):

2025/354465

Publication restriction:

Nil

REVISED EX TEMPORE JUDGMENT

1. This is an application (the Application) to the Industrial Relations Commission of New South Wales in Court Session (Industrial Court) by the applicant, Corrective Services NSW, for orders to facilitate the examination of witnesses in a foreign country for the purposes of an ongoing unfair dismissal proceeding under Ch 2 Pt 6 of the Industrial Relations Act 1996 (NSW) (IR Act) before Senior Commissioner Constant in the Industrial Relations Commission constituted other than in Court Session (the Commission proceedings).

2. The substance of the Commission proceedings relates to the alleged unfair dismissal of Mauganui Isaako, a former correctional officer.

3. I have determined to dismiss the proceedings brought by the Application. The Application fails to invoke the jurisdiction of the Industrial Court.

Procedural background

The genesis of the Application

4. On 3 September 2025, the Senior Commissioner delivered a decision dealing with two notices of motion in the Commission proceedings: Isaako v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2025] NSWIRComm 1076. The first notice of motion sought an order allowing the admission of evidence in the form of written statements from two witnesses who were unavailable for cross-examination, and the second sought urgent non-disclosure orders in relation to the identities of witnesses who were and are incarcerated at the Long Bay Correctional Complex.

5. The Senior Commissioner made directions relating to the filing of evidence before the hearing on 14 October 2025. The Senior Commissioner (at [82]-[83]) ordered:

1. the suppression and non-publication of the identities of witnesses to the Commission proceedings, as identified in the notice of motion filed on 21 August 2025; and

2. that the balance of the notice of motion dated 29 July 2025 be dismissed.

6. The Senior Commissioner was not satisfied of the probative value of the evidence of two witnesses, pseudonymised as W03 and W05, who live in India and New Zealand, respectively. She noted:

As for W03 and W05, I am not satisfied that the IR Secretary has taken adequate steps to establish their current whereabouts or availability. In light of the serious nature of the misconduct allegations and the evidence in the statements which go to these, and the inability of Mr Isaako to test this evidence through cross-examination, I am not persuaded that admitting it would be fair in all of the circumstances. Without more recent and substantive efforts to locate these witnesses, the probative value of their evidence is insufficient to justify its admission without cross-examination. [1]

1. Isaako v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2025] NSWIRComm 1076 at [66].

7. Following this decision, on 12 September 2025, the applicant filed a notice of motion in the Commission proceedings seeking the following orders:

(1) Pursuant to section 176(3) of the Industrial Relations Act 1996 (NSW) the Industrial Relations Commission of New South Wales in proceedings 2025/00192804 be reconstituted by a judicial member or judicial members as the President of the Industrial Relations Commission and Justice of the Industrial Relations Commission in Court Session so determines.

(2) The Industrial Relations Commission in Court Session being a superior court within the meaning contained in section 4 Evidence on Commission Act 1995 (NSW) ('the Act'); and pursuant to section 6(1)(c) of that Act issue a letter of request to the judicial authorities of New Zealand to take evidence of the person (with the assigned pseudonym W05) or cause it to be taken on oath or affirmation.

(3) The Industrial Relations Commission in Court Session being a superior court within the meaning contained in section 4 Evidence on Commission Act 1995 (NSW) pursuant to section 6(1)(c) issue a letter of request to the judicial authorities of India to take evidence of the person (with the assigned pseudonym W03) or cause it to be taken on oath or affirmation.

(4) In the event that the Industrial Relations Commission in Court Session makes Order 2 above, the Industrial Relations Commission in Court Session include in the order a request relating to the taking of the evidence of W05, that:

(i) a subpoena be issued by the New Zealand judicial authority to W05 to appear for examination by the New Zealand judicial authority to be examined before the Industrial Relations Commission of New South Wales as constituted by Senior Commissioner Constant.

(ii) the Australian Legal Practitioners for the Applicant and the Respondent be permitted to appear in person before the New Zealand judicial authority, and

(iii) that the legal representative of the Respondent be permitted to examine, and/or re-examine W05; and that the legal representative of the Applicant be permitted to cross-examine W05.

(5) In the event that the Industrial Relations Commission in Court Session makes Order 3 above, the Industrial Relations Commission in Court Session include in the order a request relating to the taking of the evidence of W03, that:

(i) a subpoena be issued by the Indian judicial authority to W03 to appear for examination by the Indian judicial authority to be examined before the Industrial Relations Commission of New South Wales as constituted by Senior Commission Constant,

(ii) W03 appear via Audio Visual Link (AVL) to the Industrial Relations Commission of New South Wales in Court Session in Sydney Australia, and

(iii) that the legal representative of the Respondent be permitted to examine, and/or re-examine W03; and that the legal representative of the Applicant be permitted to cross-examine W03.

(6) An order that transcript be taken of the examinations referred to in orders 4 and 5 above.

(7) An order pursuant to section 8 of the Act, that the Respondent be permitted to tender as evidence, the transcripts taken pursuant to order 6, in the proceeding before the Industrial Relations Commission of New South Wales.

(8) Having regard to the Non-Disclosure Orders made by the Industrial Relations Commission of New South Wales on 2 September 2025, in respect of the Industrial Relations Secretary's motion filed on 21 August 2025, at [82] in [2025] NSWIRComm 1076; leave be granted to the Respondent to provide the Commission and the relevant judicial authority in New Zealand and/or India any necessary identification details relating to W0S and W03 respectively.

(9) An order or direction that pursuant to section 5B(1) Evidence (Audio and Audio Visual Links) Act 1998 (NSW) W03 give evidence to the Industrial Relations Commission in Court Session by way of video link from a place outside of Australia.

(10) Such other orders as the Industrial Relations Commission of New South Wales in Court Session considers necessary.

(11) The Respondent shall pay into the Registry an amount of money determined by the Commission associated with the examination to be conducted by the Commission in New Zealand.

8. The notice of motion was ventilated at a hearing before the Senior Commissioner on 16 September 2025. Ultimately, when asked whether the applicant would move the motion, the applicant withdrew the motion and stated that it would instead seek “that the application be heard before a judicial member [of the Industrial Court]”.

The Application

9. On 15 September 2025, the applicant filed the Application in the Industrial Court, the substance of which is in identical terms to the motion referred to at [7] that was filed in the Commission proceedings and subsequently withdrawn. The orders sought in the Application are set out in Annexure A below.

10. The matter was listed for directions on 25 September 2025 before me. Initially Ms Shankar, solicitor, appeared for the applicant. Mr Nagle of counsel, and with him Mr Guy of counsel appeared for the respondent.

11. At the initial hearing, Ms Shankar was unable to identify the cause of action in respect of which the Application is made, or the precise nature of the Court’s jurisdiction that the applicant seeks to invoke. The respondent’s counsel asked the Court to dismiss the proceedings for want of jurisdiction.

12. In light of this, I stood the matter down to 2pm later that day to enable the applicant’s counsel, Mr Wydell, to attend and make submissions on the threshold jurisdictional issue. I indicated that I would need to be satisfied of an arguable basis for invoking the jurisdiction of the Industrial Court before I would be prepared to progress the Application. I indicated at that time that if I was not so satisfied, I would be inclined to dismiss the proceedings.

Consideration

13. For the following reasons I determine that the Application is misconceived and is doomed to fail.

14. The purported application is said to be “related to proceedings 2025/00192804 being an application by Isaako for an Unfair Dismissal Remedy pursuant to section 84 of the Industrial Relations Act 1996 (NSW)”. It further states that it “relates to Orders Sought for the taking of evidence on the Grounds set out herein”.

15. It is clear from the orders sought that the subject evidence is intended to be taken for the purpose of the Commission proceedings. Order 7 seeks an order enabling the applicant to tender the evidence in “the proceeding before the Industrial Relations Commission of New South Wales” (see also Orders 4 and 5).

16. The purported application relies on two statutory bases for the relief that it seeks.

17. First, the Application purports to invoke s 176(3) of the IR Act, in that it seeks that the Commission as it is presently constituted by the Senior Commissioner for the purpose of the Commission proceedings be “reconstituted by a judicial member or members as the President of the Industrial Relations Commission and Justice of the Industrial Relations Commission in Court Session so determines”.

18. Section 176(3) enables the Commission (when constituted otherwise than as the Industrial Court) to deal with a matter as the Industrial Court, but only when the relevant matter that arises in the Commission is also within the jurisdiction of the Industrial Court.

19. By this Application, the matter that arises is the issue of taking evidence from W05 and W03 who are located in foreign jurisdictions.

20. Secondly, in respect of this matter, the Application seeks orders to be made by the Industrial Court pursuant to ss 6(1)(c) and 8 of the Evidence on Commission Act 1995 (NSW). These provisions are in the following terms:

6   Orders for taking evidence abroad

(1)  In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order relating to a person outside Australia—

(a)  for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint, or

(b)  for issue of a commission for examination of the person on oath or affirmation at any place outside Australia, or

(c)  for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of a person or cause it to be taken.

…

8   Use of evidence taken in an examination

(1)  The superior court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—

(a) a person’s evidence taken in an examination held as a result of an order made under section 6, or

(b)  a record of that evidence.

(2)  Evidence of a person so tendered is not admissible if—

(a)  it appears to the court’s satisfaction at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or

(b)  the evidence would not have been admissible had it been adduced at the hearing of the proceeding.

21. The Application seeks that a letter be issued requesting the judicial authorities of the foreign countries to take the evidence of the relevant individuals, including an order that a subpoena be issued to them to appear for examination before the Commission as constituted by the Senior Commissioner, and for transcripts of the examinations to be tendered as evidence in the Commission proceedings.

22. The first observation is that the matter that is said to arise that justifies the reconstitution of the Commission must be taken to be the discrete matter of taking evidence from the relevant individuals under the Evidence on Commission Act. It cannot be the Commission proceedings generally, since it seems the applicant envisages those proceedings to remain before the Senior Commissioner, and thus the Commission when constituted otherwise than as the Industrial Court. The applicant explicitly conceded that the Industrial Court has no jurisdiction to hear or determine the unfair dismissal proceedings before the Senior Commissioner.

23. How, then, is the matter of taking evidence from these individuals under the Evidence on Commission Act “within the jurisdiction of the Commission in Court Session” for the purposes of s 176(3) of the IR Act?

24. The only basis put to me by counsel for the applicant is the assertion that the Industrial Court is a “superior court” invested with the power to make orders under s 6 of the Evidence on Commission Act, and that s 176(3) of the IR Act enables an application to be made to the Industrial Court to reconstitute the Commission for the purpose of making those orders.

25. As I understand the applicant’s submission, the Industrial Court’s jurisdiction and powers to make the orders sought under s 6 of the Evidence on Commission Act is enlivened by the mere fact that it has made the Application under s 176(3) of the IR Act and under s 6 of the Evidence on Commission Act. The applicant relies on these provisions, together with s 153(1)(l) of the IR Act, as providing the Industrial Court with jurisdiction to determine its purported application.

26. This submission is misconceived for three reasons.

27. First, the Industrial Court is not a court of general jurisdiction: Cerrafon v Health Secretary in Respect of Healthshare NSW [2025] NSWIRComm 8 at [36]-[38]. Its jurisdiction is set out in s 153 of the IR Act. The Application does not fall within any of the Industrial Court’s jurisdiction as provided in s 153.

28. Subsection 153(1)(l) invests the Court with functions including “other proceedings that are, by this Act or another Act, required to be taken before the Commission in Court Session”. Neither s 176(3) of the IR Act nor s 6(1) of the Evidence on Commission Act answer that description.

29. Secondly, s 176(3) “support[s] the proposition that there is a clear distinction to be drawn between the powers and functions of the Commission on the one hand and the Commission in Court Session on the other and that they need to be kept separate”: Packer v The Greater Murray Area Health Service [2000] NSWIRComm 149 at [23]. It does not invest the Industrial Court with any jurisdiction over the question of taking evidence on commission in the context of unfair dismissal proceedings. The reconstitution of the Commission by a judicial member under this provision presupposes that a matter has arisen in proceedings before the Commission when constituted other than as the Industrial Court which is otherwise within the jurisdiction of the Industrial Court. For s 176(3) to apply, one must go searching in this matter for a matter that is within the Court’s jurisdiction. The only other option raised by the applicant for this purpose is s 6(1) of the Evidence on Commission Act.

30. Thirdly, the power to make orders under s 6 of the Evidence on Commission Act presupposes extant proceedings before the relevant superior court, in this case the Industrial Court. The Evidence on Commission Act is part of the statutory mechanism by which Australia's domestic law implemented the provisions of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 847 UNTS 231 (dated 18 March 1970), which entered into force for Australia on 22 December 1992 ([1992] ATS 37): British American Tobacco Australia Services Ltd v Eubanksfor the United States of America (2004) 60 NSWLR 483; [2004] NSWCA 158. The Hague Evidence Convention is thus relevant to the interpretation of Pt 2 of the Evidence on Commission Act: Indochina Medical Co Pty Ltd v Nicolai [2013] NSWCA 436 at [17]. The terms of this Convention make it clear that proceedings in the initiating jurisdiction must have been commenced, that is, proceedings must have been commenced in the superior court in New South Wales for the purpose of the operation of s 6: Indochina Medical Co Pty Ltd v Nicolai [2013] NSWCA 436 at [45].

31. The fundamental misconception underlying the Application is exemplified by the order that is sought under s 8 of the Evidence on Commission Act.

32. Order 7 as sought in the Application is in the following terms (see Annexure A):

An order pursuant to section 8 of the [Evidence on Commission] Act, that the Applicant be permitted to tender as evidence, the transcripts taken pursuant to order 6, in the proceeding before the Industrial Relations Commission of New South Wales.

33. The applicant submitted that the reference to “the proceeding” in s 8 is not the same as the proceedings before the superior court referred to in s 6(1), but rather, in this context, extends to the Commission proceedings. This construction is rejected. It is clear from the terms of s 8(2) that the purpose of the taking of evidence facilitated by s 6(1) is to enable its use as evidence in the hearing of the proceedings before the superior court in which the examination orders were made, and not any other proceedings before any other court (or tribunal).

34. This construction is reinforced by the provision for a party to a proceeding in an “inferior court” to apply to a superior court to make examination orders under s 9 of the Evidence on Commission Act. There was no suggestion that the applicant relies on s 9 as a party to any proceeding before an “inferior court”.

33. I find that s 6(1) of the Evidence on Commission Act does not invest the Industrial Court with any jurisdiction to make the orders sought in the Application. The powers under this provision presuppose extant proceedings within the jurisdiction of the Industrial Court. There are none.

34. I am cognisant that the power to dismiss proceedings under Uniform Civil Procedure Rules (UCPR) r 13.4(1)(b) in respect of proceedings in which no reasonable cause of action is disclosed, is exceptional in nature, and that its exercise is restricted to appropriate circumstances.

35. For the reasons I have given above, I am satisfied that the Application filed in the Industrial Court on 15 September 2025 is so clearly deficient that it would be inappropriate to allow the proceedings to continue: Cox v Journeaux (No 2) (1935) 52 CLR 713 at [720] (per Dixon J); General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at [129]-[130].

Orders

38. Accordingly, pursuant to UCPR r 13.4(1)(b), the proceedings are dismissed generally.

**********

Annexure A

Orders sought in the Application filed on 15 September 2025

1. Pursuant to section 176(3) of the Industrial Relations Act 1996 (NSW) the Industrial Relations Commission of New South Wales in proceedings 2025/ 00192804 be reconstituted by a judicial member or judicial members as the President of the Industrial Relations Commission and Justice of the Industrial Relations Commission in Court Session so determines.

2. The Industrial Relations Commission in Court Session being a superior court within the meaning contained in section 4 Evidence on Commission Act 1995 (NSW) ('the Act'); and pursuant to section 6(1)(c) of that Act issue a letter of request to the judicial authorities of New Zealand to take evidence of the person (with the assigned pseudonym W05) or cause it to be taken on oath or affirmation.

3. The Industrial Relations Commission in Court Session being a superior court within the meaning contained in section 4 Evidence on Commission Act 1995 (NSW) pursuant to section 6(1)(c) issue a letter of request to the judicial authorities of India to take evidence of the person (with the assigned pseudonym W03) or cause it to be taken on oath or affirmation.

4. In the event that the Industrial Relations Commission in Court Session makes Order 2 above, the Industrial Relations Commission in Court Session include in the order a request relating to the taking of the evidence of W05, that:

5. a subpoena be issued by the New Zealand judicial authority to W05 to appear for examination by the New Zealand judicial authority to be examined before the Industrial Relations Commission of New South Wales as constituted by Senior Commissioner Constant.

6. the Australian Legal Practitioners for the Applicant and the Respondent be permitted to appear in person before the New Zealand judicial authority, and

7. that the legal representative of the Applicant be permitted to examine, and/or reexamine W05; and that the legal representative of the Respondent be permitted to cross-examine W05.

8. In the event that the Industrial Relations Commission in Court Session makes Order 3 above, the Industrial Relations Commission in Court Session include in the order a request relating to the taking of the evidence of W03, that:

9. a subpoena be issued by the Indian judicial authority to W03 to appear for examination by the Indian judicial authority to be examined before the Industrial Relations Commission of New South Wales as constituted by Senior Commission Constant,

10. W03 appear via Audio Video Link (AVL) to the Industrial Relations Commission of New South Wales in Sydney Australia, and

11. that the legal representative of the Applicant be permitted to examine, and/or reexamine W03; and that the legal representative of the Respondent be permitted to cross-examine W03.

12. An order that transcript be taken of the examinations referred to in orders 4 and 5 above.

13. An order pursuant to section 8 of the Act, that the Applicant be permitted to tender as evidence, the transcripts taken pursuant to order 6, in the proceeding before the Industrial Relations Commission of New South Wales.

14. Having regard to the Non-Disclosure Orders made by the Industrial Relations Commission of New South Wales on 2 September 2025, in respect of the Industrial Relations Secretary's motion filed on 21 August 2025, at [82] in [2025] NSWIRComm 1076; leave be granted to the Applicant to provide the Commission and the relevant judicial authority in New Zealand and/or India any necessary identification details relating to W0S and W03 respectively.

15. An order or direction that pursuant to section 5B(1) Evidence (Audio and Audio Visual Links) Act 1998 (NSW) W03 give evidence to the Industrial Relations Commission of New South Wales by way of video link from a place outside of Australia.

16. Such other orders as the Industrial Relations Commission of New South Wales in Court Session considers necessary.

17. The Applicant shall pay into the Registry an amount of money determined by the Commission associated with the examination to be conducted by the Commission in New Zealand.

Endnote

Decision last updated: 26 September 2025