Hunter Quarries Pty Ltd v Morrison (No 4) - [2016] NSWIC 4

Industrial Court

New South Wales

Medium Neutral Citation: Hunter Quarries Pty Ltd v Morrison (No 4) [2016] NSWIC 4
Hearing dates: 9 to 13 November 2015; 23 November 2015 (written submissions)
Date of orders: 08 April 2016
Decision date: 08 April 2016
Before: Walton J, President; Rothman J; Harrison J
Decision:
The Court makes the following orders and declarations:
(1) The interlocutory steps taken thus far are binding and effective;
(2) The Industrial Court does not have jurisdiction to hear and determine the substantive appeals;
(3) These appeals are hereby referred to the Chief Justice for allocation to the Court of Criminal Appeal comprised in accordance with the Criminal Appeal Act 1912.

Catchwords: INTERLOCUTORY – appeals – occupational health and safety – jurisdiction to hear appeals – whether proceedings are pending proceedings under transitional provisions of Industrial Relations Amendment (Industrial Court) Act 2013 – meaning of term ‘proceedings’ – interlocutory orders regarding extension of time and summons for production by first Full Bench – hearings by first Full Bench step in application or appeal which was commenced and completed – cl 58(4) of Schedule construed – no proceedings until extension of time granted – appeals proper fixed before Full Bench as presently constituted – appeals proper had neither commenced nor become part-heard or completed before abolition day – Industrial Court does not have jurisdiction to hear and determine appeals – appeals must be heard by Court of Criminal Appeal – appeals referred to Chief Justice for allocation to Court of Criminal Appeal comprised in accordance with Criminal Appeal Act 1912
Legislation Cited: Criminal Appeal Act 1912
Industrial Relations Act 1996
Industrial Relations Amendment (Industrial Court) Act 2013
Judicature Act 1873 (UK)
Occupational Health and Safety Act 2000
Service and Execution of Process Act 1992 (Cth)
Cases Cited: Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Hunter Quarries Pty Limited v Morrison [2013] NSWIRComm 49; (2013) 236 IR 180
Hunter Quarries Pty Ltd v Morrison (No 2) [2013] NSWIRComm 98; (2013) 237 IR 410
Hunter Quarries Pty Ltd v Morrison (No 3) [2014] NSWIC1
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Krextile Holdings Pty Ltd v Widdows; Re Bruch Fabrics Proprietary Limited [1974] VR 689
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Pryor v City Officers Company (1883) 10 Q.B.D 504
Quazi v Quazi [1979] 3 All ER 424
Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7
Smalley v Robey & Company Ltd [1962] 1 Q.B. 577
Sparke v Hay [2014] NSWCA 318
Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424
Category: Principal judgment
Parties:
2016/50001:
Hunter Quarries Pty Ltd (Appellant)
Rodney Morrison (Respondent)
2016/50022:
Richard Alexanda Badior (Appellant)
Rodney Morrison (Respondent)
Representation:
Counsel:
2016/50001:
B G Docking (Appellant)

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: [2016] NSWIC 4
Decision Date: 08 April 2016

CaseChat Overview and Summary

Hunter Quarries Pty Ltd filed an appeal against a decision made by Morrison, which was heard in the Industrial Court of New South Wales. The primary dispute revolved around issues of occupational health and safety, with Hunter Quarries challenging the decision on various legal grounds. The court had to determine whether it had the jurisdiction to hear the appeals, particularly in light of the transitional provisions of the Industrial Relations Amendment (Industrial Court) Act 2013.

The key legal issue before the court was the interpretation of the term ‘proceedings’ under clause 58(4) of Schedule 1 of the Industrial Relations Amendment (Industrial Court) Act 2013. Specifically, the court needed to ascertain whether the interlocutory steps taken in the appeals constituted proceedings that would prevent the Industrial Court from having jurisdiction. The court also had to decide whether the appeals could be properly heard by the Industrial Court or if they should be referred to the Court of Criminal Appeal.

The court concluded that the interlocutory steps taken were binding and effective but held that the Industrial Court lacked jurisdiction to hear and determine the substantive appeals. It was determined that the appeals were proper as they had neither commenced nor become part-heard or completed before the abolition day. Consequently, the court ruled that the appeals should be referred to the Chief Justice for allocation to the Court of Criminal Appeal, as per the Criminal Appeal Act 1912. This decision was based on the interpretation that no proceedings had occurred until the extension of time was granted, and the appeals had not become part of any proceedings prior to the abolition of the Industrial Court.

The court made several orders and declarations, including that the interlocutory steps taken thus far were binding and effective, the Industrial Court did not have jurisdiction to hear and determine the substantive appeals, and these appeals were referred to the Chief Justice for allocation to the Court of Criminal Appeal.

Orders

Orders of the court

The Court makes the following orders and declarations:

(1) The interlocutory steps taken thus far are binding and effective;

(2) The Industrial Court does not have jurisdiction to hear and determine the substantive appeals;

(3) These appeals are hereby referred to the Chief Justice for allocation to the Court of Criminal Appeal comprised in accordance with the Criminal Appeal Act 1912.

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:	Hunter Quarries Pty Ltd v Morrison (No 4) [2016] NSWIC 4
Hearing dates:	9 to 13 November 2015; 23 November 2015 (written submissions)
Date of orders:	08 April 2016
Decision date:	08 April 2016
Before:	Walton J, President; Rothman J; Harrison J
Decision:	The Court makes the following orders and declarations: (1) The interlocutory steps taken thus far are binding and effective; (2) The Industrial Court does not have jurisdiction to hear and determine the substantive appeals; (3) These appeals are hereby referred to the Chief Justice for allocation to the Court of Criminal Appeal comprised in accordance with the Criminal Appeal Act 1912.
Catchwords:	INTERLOCUTORY – appeals – occupational health and safety – jurisdiction to hear appeals – whether proceedings are pending proceedings under transitional provisions of Industrial Relations Amendment (Industrial Court) Act 2013 – meaning of term ‘proceedings’ – interlocutory orders regarding extension of time and summons for production by first Full Bench – hearings by first Full Bench step in application or appeal which was commenced and completed – cl 58(4) of Schedule construed – no proceedings until extension of time granted – appeals proper fixed before Full Bench as presently constituted – appeals proper had neither commenced nor become part-heard or completed before abolition day – Industrial Court does not have jurisdiction to hear and determine appeals – appeals must be heard by Court of Criminal Appeal – appeals referred to Chief Justice for allocation to Court of Criminal Appeal comprised in accordance with Criminal Appeal Act 1912
Legislation Cited:	Criminal Appeal Act 1912 Industrial Relations Act 1996 Industrial Relations Amendment (Industrial Court) Act 2013 Judicature Act 1873 (UK) Occupational Health and Safety Act 2000 Service and Execution of Process Act 1992 (Cth)
Cases Cited:	Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Hunter Quarries Pty Limited v Morrison [2013] NSWIRComm 49; (2013) 236 IR 180 Hunter Quarries Pty Ltd v Morrison (No 2) [2013] NSWIRComm 98; (2013) 237 IR 410 Hunter Quarries Pty Ltd v Morrison (No 3) [2014] NSWIC1 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Krextile Holdings Pty Ltd v Widdows; Re Bruch Fabrics Proprietary Limited [1974] VR 689 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Pryor v City Officers Company (1883) 10 Q.B.D 504 Quazi v Quazi [1979] 3 All ER 424 Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Smalley v Robey & Company Ltd [1962] 1 Q.B. 577 Sparke v Hay [2014] NSWCA 318 Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424
Category:	Principal judgment
Parties:	2016/50001: Hunter Quarries Pty Ltd (Appellant) Rodney Morrison (Respondent) 2016/50022: Richard Alexanda Badior (Appellant) Rodney Morrison (Respondent)
Representation:	Counsel: 2016/50001: B G Docking (Appellant)