Newcrest Mining v Industrial Relations Commission (NSW) - [2005] NSWCA 85

CITATION:
NEWCREST MINING v IRC of NSW & CFMEU [2005] NSWCA 85

HEARING DATE(S):
21/03/2005

JUDGMENT DATE:

23 March 2005

JUDGMENT OF:
Bryson JA at 1

DECISION:
Notice of Motion dismissed with costs

CATCHWORDS:
PRACTICE and PROCEDURE - Court of Appeal - stay of proceedings pending application for prohibition - principles on which stay granted under inherent power and SC Act 1970 s.23 - refuse to stay proceedings in IRC on dispute notification pending hearing of application for prohibition based on lack of State jurisdiction and inconsistency between AWA under SR Act (Cth) and provisions of IR Act (NSW) - INDUSTRIAL LAW - employment under AWA under WR Act (Cth) - whether Constitution s.109 inconsistency excludes dispute resolution provisions of IR Act (NSW) - interlocutory stay of proceedings in IRC refused.

LEGISLATION CITED:
Industrial Relations Act 1996
Judiciary Act 1903 (Cth)
Supreme Court Act 1970
Workplace Relations Act 1996 (Cth)

CASES CITED:
CFMEU v Newcrest Mining Limited [2005] NSWIRComm 23 Notification under s130 by the CFMEU of a dispute with Newcrest Mining Limited [2005] NSWIRComm 77
Alexander v. Cambridge Credit Corporation (Receivers Appointed) (1985) 2 NSWLR 685
New South Wales Bar Association v. Stevens [2003] NSWCA 95

PARTIES:
Newcrest Mining - Claimant
Industrial Relations Commission of New South Wales - First Opponent
Construction, Forestry, Mining and Energy Union (NSW Branch) - Second Opponent

FILE NUMBER(S):
CA 40139/2005

COUNSEL:
R Buchanan Q.C. and S Meehan for the Claimant
S Crawshaw S.C. and A Slevin for the Second Opponent

SOLICITORS:
Blake Dawson Waldron for Claimant
Australian Government Solicitor for Opponents

LOWER COURT JURISDICTION:
Industrial Relations Commission of NSW

LOWER COURT FILE NUMBER(S):
IRC5730 of 2004

LOWER COURT JUDICIAL OFFICER:
Walton J, Vice President

40139/2005

BRYSON JA
23 MARCH 2005

Newcrest Mining v. Industrial Relations Commission of New South Wales and Construction, Forestry, Mining and Energy Union (NSW Branch)

Judgment

1 BRYSON JA: By Summons of 4 March 2005 Newcrest claims an order in the nature of prohibition restraining Industrial Relations Commission of New South Wales (IRC) the first opponent from dealing with a notification IRC 5730 of 2004 of an industrial dispute by the second opponent referred to as CFMEU. Newcrest applies by Notice of Motion of 14 March for an order that proceedings in IRC be stayed until determination of the claim in the Summons. I heard the application on 21 March. IRC did not appear. CFMEU was represented by counsel. The Attorney General of NSW obtained leave to appear and was represented by the Solicitor General Mr Sexton Q.C. Mr Tamatea, whose employment is under consideration, is not a party.

2 Mr Brett Tamatea is employed by Newcrest at the Cadia Valley Gold Mine near Orange, New South Wales. He is a member of CFMEU. His terms of employment are regulated by an Australian Workplace Agreement (AWA) the parties to which are Newcrest and himself. As a disciplinary measure Mr Tamatea has been given a final written warning by Newcrest. Provisions of the AWA relating to “Fair Treatment Procedure”…

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: [2005] NSWCA 85
Decision Date: 23 March 2005

CaseChat Overview and Summary

Newcrest Mining Limited sought a stay of proceedings before the Industrial Relations Commission of New South Wales (IRC). The dispute concerned the resolution of employment matters arising under an Australian Workplace Agreement (AWA) made under the Workplace Relations Act 1996 (Cth). Newcrest argued that the IRC lacked jurisdiction due to a potential inconsistency between the AWA and the Industrial Relations Act 1996 (NSW), and that the Commonwealth legislation, by virtue of section 109 of the Constitution, displaced the operation of the NSW Act.

The primary legal issue before the Court of Appeal was whether to grant an interlocutory stay of the IRC proceedings pending the determination of an application for prohibition. This required the court to consider the principles governing the grant of a stay, both under its inherent power and section 23 of the Supreme Court Act 1970 (NSW). Specifically, the court had to assess whether there was a sufficient likelihood of success on the merits of the prohibition application, which hinged on the question of constitutional inconsistency under section 109.

Bryson JA refused the stay. His Honour reasoned that the application for prohibition, which alleged a lack of State jurisdiction and constitutional inconsistency, was not sufficiently strong to warrant a stay of the IRC proceedings. The court applied the established principles for granting interlocutory stays, requiring a strong prima facie case or a serious question to be tried, balanced against the potential prejudice to the parties. In this instance, the court found that the threshold for granting a stay had not been met.

The Notice of Motion seeking the stay of proceedings was dismissed, and Newcrest Mining Limited was ordered to pay the costs of the application.

Orders

Orders of the court

Notice of Motion dismissed with costs

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.

CITATION:	NEWCREST MINING v IRC of NSW & CFMEU [2005] NSWCA 85
HEARING DATE(S):	21/03/2005
JUDGMENT DATE:	23 March 2005
JUDGMENT OF:	Bryson JA at 1
DECISION:	Notice of Motion dismissed with costs

CATCHWORDS:	PRACTICE and PROCEDURE - Court of Appeal - stay of proceedings pending application for prohibition - principles on which stay granted under inherent power and SC Act 1970 s.23 - refuse to stay proceedings in IRC on dispute notification pending hearing of application for prohibition based on lack of State jurisdiction and inconsistency between AWA under SR Act (Cth) and provisions of IR Act (NSW) - INDUSTRIAL LAW - employment under AWA under WR Act (Cth) - whether Constitution s.109 inconsistency excludes dispute resolution provisions of IR Act (NSW) - interlocutory stay of proceedings in IRC refused.
LEGISLATION CITED:	Industrial Relations Act 1996 Judiciary Act 1903 (Cth) Supreme Court Act 1970 Workplace Relations Act 1996 (Cth)
CASES CITED:	CFMEU v Newcrest Mining Limited [2005] NSWIRComm 23 Notification under s130 by the CFMEU of a dispute with Newcrest Mining Limited [2005] NSWIRComm 77 Alexander v. Cambridge Credit Corporation (Receivers Appointed) (1985) 2 NSWLR 685 New South Wales Bar Association v. Stevens [2003] NSWCA 95
PARTIES:	Newcrest Mining - Claimant Industrial Relations Commission of New South Wales - First Opponent Construction, Forestry, Mining and Energy Union (NSW Branch) - Second Opponent
FILE NUMBER(S):	CA 40139/2005
COUNSEL:	R Buchanan Q.C. and S Meehan for the Claimant S Crawshaw S.C. and A Slevin for the Second Opponent
SOLICITORS:	Blake Dawson Waldron for Claimant Australian Government Solicitor for Opponents

LOWER COURT JURISDICTION:	Industrial Relations Commission of NSW
LOWER COURT FILE NUMBER(S):	IRC5730 of 2004
LOWER COURT JUDICIAL OFFICER:	Walton J, Vice President