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

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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWIC 14
Decision Date: 25 September 2025

CaseChat Overview and Summary

Corrective Services NSW filed proceedings against Mauganui Isaako seeking to dismiss an unfair dismissal claim brought by Mr Isaako in the Industrial Relations Commission. The dispute centred on the interpretation and application of the Evidence on Commission Act 1995 (NSW). The primary issue before the court was whether the Commission in Court Session, established under the Act, had the jurisdiction to make orders for the taking of evidence in unfair dismissal proceedings when no proceedings were currently before the court. Specifically, the court needed to determine whether section 6(1) of the Act conferred the requisite jurisdiction on the Commission in the absence of active proceedings within the court's jurisdiction.

The court examined the text of section 6(1) of the Evidence on Commission Act 1995 (NSW) and concluded that it did not provide the Commission in Court Session with the authority to make such orders independently. The court found that the Act was designed to facilitate the taking of evidence for use in proceedings already before the court, rather than initiating new proceedings. As the Act did not explicitly grant the Commission the power to act in the absence of extant proceedings, and no other provision or common law principle could be interpreted to confer such jurisdiction, the court held that the Commission did not have the requisite authority. Consequently, the court dismissed the proceedings for lack of jurisdiction.

The court's decision was grounded in a strict interpretation of statutory provisions and the absence of any clear legislative intent to confer the power sought. The court emphasised the importance of jurisdictional limits and the principle that courts should not extend the powers of administrative bodies beyond what is expressly provided by statute. As a result, the proceedings were dismissed with no order as to costs pursuant to UCPR r 13.4(1)(b).

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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