Robert Roy Barley v Depela Pty Limited [1995] IRCA 647

CATCHWORDS INDUSTRIAL LAW - Associated Jurisdiction of the Court - The Court has power to enforce settlements of proceedings initiated by way of application under section 170EA - Such settlements should be precise enough to be enforceable. CORPORATIONS LAW - The Industrial Relations Court of Australia has no jurisdiction to grant leave for proceedings to continue against a company under the control of an administrator. Industrial Relations Act 1988ss 170DB, 170EA, 170EC, 430. Corporations Law ss 436A, 440D Industrial Relations Court of Australia, Practice Note No. 4. ROBERT ROY BARLEY -v- DEPELA PTY LIMITED No. NI 1392 of 1995 COURT: PATCH JR PLACE: SYDNEY DATE: 16 AUGUST 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. 1392 of 1995 BETWEEN: Robert Roy BARLEY Applicant AND: DEPELA PTY LIMITED Respondent REASONS FOR JUDGMENT 16 August 1995 PATCH JR This matter is before the Court by virtue of a Notice of Motion. The applicant has established that on 13 April 1995, in proceedings before the Australian Industrial Relations Commission, which proceedings were by way of conciliation pursuant to section 170EC of the Industrial Relations Act 1988 ("the Act"), terms of settlement were agreed between himself and the respondent corporation. Those terms of settlement are attached to a letter, signed by a Commissioner, dated 6 April 1995, and are as follows: "1. The employer is to provide Mr Barley with a reference; 2. The parties are to draw up a privacy agreement; 3. Three weeks' pay in accordance with notice under section 170DB of the Act "[sic]. The Court has the power to enforce settlements, by virtue of section 430 of the Act, in its associated jurisdiction. The purpose of giving the Court that associated jurisdiction is to enable the Court to deal with, to finality, all related matters in dispute between the parties. A notice of motion seeking enforcement of a settlement of a proceeding initiated by way of an application under section 170EA of the Act is, in my opinion, such a matter. However, the respondent company is under the control of an administrator appointed in accordance with section 436A of the Corporations Law. Section 440D(1) of the Corporations Law is as follows: "During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except: (a) with the administrator's written consent; or (b) with the leave of the Court and in accordance with such terms (if any) as the Court imposes." Section 9 of the Corporations Law defines "Court" as follows: "The Federal Court, or the Supreme Court of this or any other jurisdiction, when exercising the jurisdiction of this jurisdiction." It can readily be seen that this Court does not have jurisdiction to grant leave under section 440D(1)(b) of the Corporations Law. The applicant does not have the administrator's written consent, nor does he have the leave of a relevant court. It follows that the proceedings are taken to be stayed by virtue of section 440D(1). Even if the company were not under administration, I would not have made orders in accordance with clauses 1 and 2 of the terms of settlement. The first clause is: "The employer is to provide Mr Barley with a reference." That is so vague as to be unenforceable. It is always desirable that, when terms of settlement are reached, either by way of private negotiation or by way of conciliation before the Australian Industrial Relations Commission, that those terms of settlement be precise enough to be enforceable by a court. In this case if a draft reference had been agreed between the parties and annexed to the terms of settlement then that clause would have been enforceable. Unfortunately, that was not done. The second clause of the terms of settlement is: "The parties are to draw up a privacy agreement." Again, the privacy agreement was not drawn up. That clause is therefore too vague to be enforceable. Furthermore, as a matter of policy, the Court will not restrict the publication of its orders (see Practice Note number 4). So, I would have declined, as a matter of discretion, to enforce that "privacy" clause, even if I were able to deduce what it meant. I would have made an order under the associated jurisdiction of the Court enforcing the third term of the settlement, (pay in lieu of notice) but for the reasons set out above, I am unable to do so because the proceedings are stayed.