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

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

The stay was refused because Newcrest did not demonstrate that continuation of the IRC conciliation proceedings would cause adverse consequences so severe, unjust, or difficult to remedy as to make interlocutory intervention necessary. The dispute was narrow, the anticipated departure from the AWA procedure was not great, conciliation before the IRC was not shown to be a marked injustice, and the s.109 inconsistency argument was only fairly arguable and not clearly established at the interlocutory stage.

Jurisdiction
Australia
Judgment Date
23 March 2005
Procedural Posture
Application for an Order in the Nature of Prohibition and Interlocutory Stay of Proceedings / Notice of Motion for Stay Pending Determination of the Summons
Outcome
Notice of Motion dismissed with costs
Legal Topics
['stay of Proceedings' 'inherent Power of the Court' 'industrial Dispute Notification' 'australian Workplace Agreement' 'section 109 Inconsistency' 'industrial Relations Commission Jurisdiction']
['practice and Procedure' 'industrial Law' 'constitutional Law'] ['stay of Proceedings' 'inherent Power of the Court' 'industrial Dispute Notification' 'australian Workplace Agreement' 'section 109 Inconsistency' 'industrial Relations Commission Jurisdiction']

Case Brief

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Procedural Posture

Application for an Order in the Nature of Prohibition and Interlocutory Stay of Proceedings / Notice of Motion for Stay Pending Determination of the Summons

Legal Issues

  1. 1 ["Whether proceedings in the Industrial Relations Commission of New South Wales should be stayed pending determination of Newcrest's claim for an order in the nature of prohibition." 'Whether Newcrest showed that allowing the IRC proceedings to continue would cause adverse consequences so difficult to remedy or so severe that interlocutory intervention was necessary.' "Whether Newcrest's contention that Constitution s.109 inconsistency between Commonwealth workplace law and State industrial law deprived the IRC of jurisdiction was sufficiently clear or strong to justify a stay."]

Ratio Decidendi

The stay was refused because Newcrest did not demonstrate that continuation of the IRC conciliation proceedings would cause adverse consequences so severe, unjust, or difficult to remedy as to make interlocutory intervention necessary. The dispute was narrow, the anticipated departure from the AWA procedure was not great, conciliation before the IRC was not shown to be a marked injustice, and the s.109 inconsistency argument was only fairly arguable and not clearly established at the interlocutory stage.

Court Disposition

Notice of Motion dismissed with costs

Orders

  • ['Notice of Motion dismissed with costs']