Wang & Anor v Full Bench of AIRC & Ors [2005] HCATrans 771 (22 September 2005)

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Wang & Anor v Full Bench of AIRC & Ors [2005] HCATrans 771 (22 September 2005)

Last Updated: 28 September 2005

[2005] HCATrans 771

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M91 of 2005

B e t w e e n -

NAN WANG AND QIAN XIAO

Plaintiff

and

THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Defendant

COMMISSIONER LEWIN OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Second Defendant

DEMOS PROPERTY SERVICES (AUSTRALIA) PTY LTD

Third Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 22 SEPTEMBER 2005, AT 11.04 AM

Copyright in the High Court of Australia

__________________

MR N. WANG appeared in person.

MS M.E. FARRANT: If the Court pleases, I appear for the third defendant. (instructed by Frenkel Partners)

HIS HONOUR: Now, perhaps if again we could swear or affirm the interpreter.

FREDERIK QUACH, affirmed as interpreter:

HIS HONOUR: Mr Wang, you appear on your own behalf and on behalf of your wife, do you?

MR WANG: Yes.

HIS HONOUR: Yes.

MR WANG: Both of us, thank you.

HIS HONOUR: Yes, thank you. Now, before we begin I should tell all of the parties that my present inclination is to remit the further hearing of this matter to the Federal Court of Australia. That would include remitting the application by the third defendant to be removed from the proceeding and it would be a remitter to the Federal Court, not to the Federal Magistrates Court, because it seems to me that it is the Federal Court rather than the Federal Magistrates Court which should hear and determine the matter.

There are in this matter, so it seems, some disputes of fact, leave aside the disputes about who are the proper parties to the proceeding. Those are matters better dealt with by a court which has the principal carriage of trial of proceedings of this kind. So the first issue that I wish the parties to address is why should I not remit the proceeding to the Federal Court.

Now, Mr Wang, perhaps if I hear from you first on that question only. Why should I not send this case to the Federal Court for that court to give it the time and attention it deserves?

MR WANG (through interpreter): Firstly, I would like to apologise in wasting your time because I need to speak as well as the interpreter.

HIS HONOUR: That is no waste of time.

MR WANG (through interpreter): Why this case need to be dealt with by the Federal Court is that because it is a related to the federal.....so this should be dealt with by the Federal Court.

Well, advice on the Constitution Chapter III is if the High Court finds that the Industrial Relations Commission has made an error in regard to law then it is the duty and obligations to transfer the case to the Federal Court.

HIS HONOUR: Forgive me, just a moment. The last proposition was it is the duty to transfer or the duty not to transfer?

THE INTERPRETER: To transfer.

HIS HONOUR: To transfer?

THE INTERPRETER: Yes, your Honour.

HIS HONOUR: Yes. Well, Mr Wang, if you are saying I should transfer the case, that is my present intention. If that is what you want to happen, I should hear from the other side and see whether they say something different.

Now, Ms Farrant, I must say to you before you begin, and I express no concluded view about this, I see what is said about your side not being a proper party and how can certiorari, prohibition, et cetera go to your party. I understand that, it cannot, but who else is the proper contradictor? It is your side that has the interest, it seems to me, in supporting the decision of the Commission and would ordinarily be the proper party, but that is simply by the by. Why should I not send it off to the Federal Court where they can
sort all this out with the time and resources that they will apply to it, rather than me spending my time on it?

MS FARRANT: I do not see any real difficulty with it, your Honour.

HIS HONOUR: Yes, very well. There will be in this matter an order remitting the proceeding to the Federal Court of Australia. It will be necessary for there to be copies made of the papers filed in this Court. That can, I think in this matter, be undertaken by this Court and we will arrange transmission of copies of the papers to the Federal Court. The costs of the proceeding to date will be fixed according to the scale of costs in this Court but will be costs in the proceeding. Otherwise I think there is no other order I need to make to effect the remitter.

You will now hear from the Federal Court when you have to come back to court again, but they will contact you.

AT 11.14 AM THE MATTER WAS CONCLUDED