Gosper v Sawyer [1985] HCA 19

Gosper v Sawyer [1985] HCA 19

Regulation 157 concerned the Commission's practice and did not apply Pt 10 of the Supreme Court Rules so as to confer jurisdiction to serve process on the trustees in Victoria. Section 11(1)(b) of the Service and Execution of Process Act did not apply because the relief sought against the trustees was directed to the trust deed governing the Fund, not to the New South Wales employment contract, and any relevant trust arrangement was made and governed in Victoria. Further, s. 88F of the Industrial Arbitration Act did not empower the Commission to avoid or vary the trusts of a fund created in Victoria and governed by Victorian law. The Commission therefore lacked jurisdiction to make the...

Jurisdiction
Australia
Procedural Posture
Appeal by Special Leave and Application for Writ of Prohibition / High Court Appeal and Application Heard Together
Outcome
Appeal allowed; orders of the Industrial Commission set aside; order nisi for prohibition made absolute.
Legal Topics
['service of Process Outside New South Wales' 'federal Jurisdiction' 'service and Execution of Process Act 1901 Cth' 'industrial Arbitration Act 1940 NSW S. 88 F' 'power to Vary or Avoid Trust Deed Governing Pension Fund' 'territorial Limits of State Jurisdiction']
['industrial Law' 'civil Procedure' 'private International Law' 'trusts' 'constitutional Law'] ['service of Process Outside New South Wales' 'federal Jurisdiction' 'service and Execution of Process Act 1901 Cth' 'industrial Arbitration Act 1940 NSW S. 88 F' 'power to Vary or Avoid Trust Deed Governing Pension Fund' 'territorial Limits of State Jurisdiction']

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Procedural Posture

Appeal by Special Leave and Application for Writ of Prohibition / High Court Appeal and Application Heard Together

Legal Issues

  1. 1 ["Whether reg. 157 of the Industrial Arbitration (General) Regulations made Pt 10 of the Supreme Court Rules applicable so as to authorize service of the Commission's process on trustees in Victoria." 'Whether proceedings against the trustees fell within s. 11(1)(b) of the Service and Execution of Process Act 1901 Cth.' 'Whether the Industrial Commission of New South Wales had jurisdiction under s. 88F of the Industrial Arbitration Act 1940 NSW to make orders affecting a trust created in Victoria and governed by Victorian law.']

Ratio Decidendi

Regulation 157 concerned the Commission's practice and did not apply Pt 10 of the Supreme Court Rules so as to confer jurisdiction to serve process on the trustees in Victoria. Section 11(1)(b) of the Service and Execution of Process Act did not apply because the relief sought against the trustees was directed to the trust deed governing the Fund, not to the New South Wales employment contract, and any relevant trust arrangement was made and governed in Victoria. Further, s. 88F of the Industrial Arbitration Act did not empower the Commission to avoid or vary the trusts of a fund created in Victoria and governed by Victorian law. The Commission therefore lacked jurisdiction to make the...

Court Disposition

Appeal allowed; orders of the Industrial Commission set aside; order nisi for prohibition made absolute.

Orders

  • ['Appeal allowed with costs against the first respondent, Ross Arthur Lynn Sawyer.' 'Set aside the order of the Industrial Commission of New South Wales made on 8 June 1984 and in lieu thereof order that the question referred to the Commission in court session be answered in the negative.' 'Set aside the order of...