State of Vic v Sutton & Anor

The High Court of Australia, constituted by Brennan CJ in chambers, heard an application concerning an appeal from a decision of the Full Court of the Industrial Relations Court of Australia. The parties involved were the State of Victoria as the appellant and two respondents, represented by Mr. S.C. Rothman SC and Mr. H. Borenstein, and the appellant (respondent to the summons) represented by Mr. I.G. Sutherland QC and Dr. I. Hardingham. The central dispute revolved around the orders to be sought from the High Court in the event that the appeal was allowed.

The primary legal issue before the court was to determine the appropriate orders to be made by the High Court, particularly in circumstances where the parties agreed that if the appeal were successful, certain matters would require further determination, potentially involving evidence and adjudication not yet undertaken by lower courts. This raised questions about whether the High Court should remit the matter to a lower court, and if so, with what directions, given that some issues had been canvassed but not fully adjudicated upon by the Full Court. A further complication arose regarding the scope of the leave granted to appeal, with a discrepancy noted between the formal order and the parties' understanding of its limitations.

Brennan CJ expressed concern that the available documentation did not clearly define the issues to be determined, particularly in relation to the grounds of appeal and the "Notice of Contention" filed by the respondents. The parties indicated an agreement that the appeal should proceed on the grounds articulated in the notice of appeal, which they understood to be limited to two specific issues: the validity or voidability of a disposition of funds and property of the BLF, and whether, if voidable, an election had been exercised to avoid that disposition. The appellant's counsel submitted that confining the appeal to these grounds would not give rise to constitutional questions requiring notice under section 78B of the Judiciary Act 1903 (Cth) or the convening of a Full Court. However, the Chief Justice remained uncertain whether certain grounds, particularly those in the Notice of Contention, might still intrude upon questions of construction and operation of relevant legislation and Orders in Council.