Practice Note No.28


Issue Date:
Commencement Date:
14 February 2014
1 March 2014


INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
 
PRACTICE NOTE No. 28

Issued pursuant to Section 185A of the Industrial Relations Act 1996 and Section 15 of the Civil Procedure Act
2005.
Proceedings pursuant to section 43 Entertainment Industry Act 2013

1.The purpose of this Practice Note is to provide a procedure for the effective disposal of such matters brought before the Industrial Court

2. This Practice Note has effect from the 1 March 2014.

3.1 Proceedings to recover a civil penalty
      (1) Proceedings to recover a civil penalty under section 43 of the Entertainment Industry Act 2013 (the Act) must be commenced by an application for summons.
      (2) The application must state the following:
        (a) the name and address of the person by whom the proceedings are brought (the prosecutor),
        (b) the capacity in which the prosecutor is taking the proceedings,
        (c) the name and address of the person against whom the proceedings are brought (the defendant),
        (d) the provision or provisions of the Act that the defendant is alleged to have contravened,
        (e) the nature of the contravention that is alleged,
        (f) particulars of any payment that it is alleged the defendant has failed to make,
        (g) whether an application is to be made under section section 6(2)(b), 7(4), 16 or 18 of the Act for the recovery of any payment outstanding.
      (3) The Industrial Court may require the prosecutor to file, in support of the application:
        (a) an affidavit verifying the allegations made in the application, and
        (b) a minute of the summons sought.

3.2 Issue of summons
      When an application for a summons has been filed and it appears to the Registrar to be properly filed, the Registrar must issue the summons, directing the defendant to appear before the Industrial Court on the day and at the place specified.

3.3 Service of summons and affidavit verifying
      (1) The prosecutor must serve the summons and a copy of the affidavit verifying promptly and not later than 5 days before the return date of the summons unless the Industrial Court gives leave for a shorter period of service.
      (2) Such service must be effected in a manner as that specified under Part 10 of the Uniform Civil Procedure Rules 2005.
      (3) An affidavit of service of the summons or a notification of the non-service thereof must be filed not less than 3 days before the return date of the summons.
      (4) The Registrar may give directions with regard to service or for substituted service in accordance with these Rules.
      (5) If the summons has not been served by the return date, the Registrar must, on an application made by the prosecutor in accordance with rule 17.1, issue a further summons for the defendant's attendance before the Industrial Court.

3.4 Dismissal for want of prosecution
      (1) If the prosecutor fails to appear or otherwise does not proceed with the matter, the Industrial Court may dismiss the proceeding.
      (2) Any matter which has been dismissed under this rule may be restored to the list by the Industrial Court on such terms as it considers reasonable if it is satisfied that the failure was due to misunderstanding or that there are other special circumstances.
      (3) An application to restore a matter to the list which has been dismissed under subrule (1) must be by notice of motion accompanied by an affidavit as to the matters referred to in subrule (2).

3.5 Amendment of process
      (1) The Industrial Court may allow any process to be amended on such terms as to adjournment, the times within which any matter or thing may be done in connection with the proceedings, and service of notice of the amendment, as the Court thinks fit.



Walton J, President
14 February 2014