Dun v Misima Mines Pty Ltd [1994] QIRC 675 (1994) 147 QGIG 1556

1556 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [16 December, 1994 ####################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION lnJustriul Re/a/ions Act 1990 s. 295 - application for reinstatement s. 48 - application that case be stated to Industrial Court Barry Robert Dun AND Misima Mines Pty. Ltd. (No B809 of 1994) CIIIEF INDUSTRIAL COMMISSIONER HALL 21 November 1994 Application for Reinstatement - Application for Case Stated - Principles to be Applied - 1\/o Agreed Facts - Convenience, Cost and Delay - Application Refused. REPORT ON DECISION (AS FDITED) In giving a decision from the Benc:h on 22 No\ ember l 994 the Chief Commissioner said:- "This matter has now been before m-: on a number of occasions. It is apparent from the documents which have been filed with the Industrial Registrar that the matter raises a serious question as to jurisdiction. Though the pleadings are not yet complete, it is apparent from what has been told to me hy the solicitors to the pai1ics thal the events which preceded the office - anti dismissal and the Applicants' role in them is a matter of controversy, that taking of evidence upon which may take some considerable time. It is in those circumstances that the Respondent now seeks that I state a case for the opinion of the Industrial Court on the question of jurisdiction. The Respondent says that if the Commission resolves the matter one or other of the parties will appeal, and further that if the mailer is now resolved by the Court adversely to the Applicant no moneys will be expended on the other issues. The Applicant opposes the stating of such a case, substantially on the grounds of delay, and says that he wishes his cast: to be heard. There is little authority upon the nature and exercise of the Commission's power to state a case. In these circumstances I consider that the Commission would be wise to draw upon the experience of the Courts whilst having regard to the nature of the case in which the issue areas, the objects of the Industrial Relaiion:, Act 1990 and s. 590(1)(a) and (b) and s. 92. Jn drawing upon the experience of the Courts I have treated s. 48 as relating to stating a special case for the opinion of the Industrial Court and have treated as misleading the section heading "Case stated to Court''. A "case stated" is an altogether difterent creature. Smith v Mann ( 1932)4) CLR 426 at 446 per Dixon J. The general rule applied by the Courts i, that advantage should he taken of the procedure when there is a point of law which, if decided one way is going to he decisive of the matler, Everett v Ribbands [195211 QR 198 at 206 to 207 per Romer AJ, approved Carl Zeiss Stifling, llerb.:rl Smith & Co [1969] I Ch 93 at 98 per Lord Denning 1\!R. Oiplock and Sachs AJJ. For this purpose of the rule a point of law which is ''likely" or which will "probably'. put an end to the litigation is ·'going to be decisive", Evans Deakin Ind. Ltd v The Commonwealth of Australia ( 1983) I Qd.R 40, at 49 per DM Campbell for Re Co/Ion Crops Ply. Ltd. [I 985 I 2 Qd. R 448 at 450 per McPherson J. A jurisdictional point is property no character used. However the cases warn of the very great case which is needed to en.ure that the procedure is adopted only where appropriate, compare David v Ahdul Cader [ l 963) 1 WLR 834, 840 to 841, and that the true balance of convenience must always be assessed, Filling v While Afan [ 1980] AC 1001. ln this case the Respondent's difficulty is that there is not agreement upon the facts to be stated. The Respondent suggests that upon the Respondents file and serve a case stated, the Applicant should file on this service his own case stated and that the Commission should resolve any disputed issu<.:s by taking evidence. It is. of course, a disadvantage of the procedure suggested that whereas one of the benefits said normally to accrue from stating a case 1s the elimination of interlocutory steps. in this case the process will require the elimination of interlocutory steps which. if the junsdictional point is decided against the Applil.:ant. will have bc:cn unnecessary steps. Further, the parties may find it necessary to marshal! \\,itue,ses twice and, perhaps, the same witnesses twice. And in this case it seems ineYitable that some witnesses will be drawn from beyond Australia's shores. In those circumstances it is not surprising that the Applicant complains of potential costing expresses a preference that his case be heard as a whole. I bear in mind that in the course of such a hearing, it would be open to the Commission to state a case if a crisp set of facts enabling resolution of the jurisdiction issue does emerge. I bear in mind also that if the Respondent's approach is adopted and the Applicant establishes Jurisdiction, the length of the list and the loss of time will bar hearing of this matter within 12 months of the dismissal. I have decided not to state a case for the opinion of the Industrial Coun. The application that such a course be taken is dismis~e<l.''. Dated this twenty-first Jay of NoYember. 19'14 IJy the Commission, [L.S.] R.H. BLUMSOM, Assistant Industrial Registrar. App~arcmces: Mr 1. :'v1cKee (ofl\;ehmer Davenport Dean McKee) for Barry Robert Dun. Mr M. Smith (of Boulton Cleary & Kem) for Misima Mines Pt,- Ltd. Operative Date: NIA Decision - Case Not Stated Released: 6 December 1994 13408 I.DOC 16 December, 1994 l QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1557 -- 1 of 1 --