INDUSTRIAL RELATIONS COURT OF AUSTRALIA WORKPLACE RELATIONS – permanent stay of proceedings – abuse of process – whether waiver SHARAN SHARMA AND Shally Sarta Devi Prasad v State Rail Authority of New South Wales NI 5047 OF 1995 NI 1273 of 1996 MADGWICK j 17 NOVEMBER 1998 SYDNEY IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 5047 of 1995 NI 1273 of 1996 BETWEEN: Sharan Sharma First Applicant Shally Sarta Devi Prasad Second Applicant AND: State Rail Authority of New South Wales Respondent JUDGE(S): MADGWICK DATE OF ORDER: 17 november 1998 WHERE MADE: SYDNEY short minutes of order THE COURT ORDERS THAT: 1. The application for relief is permanently stayed. IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 5047 of 1995 NI 1273 of 1996 BETWEEN: Sharan Sharma First Applicant Shally Sarta Devi Prasad Second Applicant AND: State Rail Authority of New South Wales Respondent JUDGE(S): MADGWICK DATE: 17 november 1998 PLACE: SYDNEY REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: In these matters I delivered a judgment on 25 May of this year in which I held that the applicants were not estopped from pursuing their claims in the Court by reason of litigation before tribunals established under State law, but concluded that prima facie there was a case for staying the proceedings because to suffer the continuance of them might be an abuse of the Court's process. I noted that relief in that regard was discretionary, that exclusion of a party had always been regarded as an extreme step, that there might have been some witting or unwitting acquiescence by the respondent in the seeming efforts by each applicant to litigate their grievances twice, and that any such acquiescence might have legal consequences. The matter has been further investigated. It seems that applications for relief were made to this Court on 20 February 1996 and that in February and March there were conciliation conferences before Commissioners of the Australian Industrial Relations Commission, as it then was, with a view to settling the matter. There is no material before me as to what was said or not said before the Commission. This is understandable and even if the respondent did nothing to assert its complaints that the proceedings were estopped or an abuse of process, I would be reluctant to hold that against the respondent. Parties ought not be discouraged from freely trying to reach agreement without prejudice to their legal rights. The fact that they do so, without asserting legal rights, ought not, in general, to be taken to be an acquiescence in the competency of the proceedings in the context of which the conciliation efforts are occurring. There was then on 17 June 1997 a short directions hearing before a Deputy Registrar of the Court. A legal representative of the applicants then indicated that there was some final avenue of "internal appeal" open to the applicants, but he nevertheless sought a date for hearing. There was no objection to that course by the representative for the respondent. That avenue of internal appeal failed. The matter then came on for hearing before a Judicial Registrar on 30 September 1996. The question of cause of action estoppel was raised before the Judicial Registrar, and she upheld that claim. It was from that decision that the application for review to me was brought. There is no dispute that a few days before the matter was heard by the Judicial Registrar, notice of the contentions of the respondent was given to the legal representatives of the applicants and that this notice included reference to a claim of estoppel. It does not seem to me, therefore, that it has been shown that the respondent acquiesced or failed to act in a reasonably prompt way to assert its view that the proceedings in the Court were, one way or the other, incompetent. Nothing turns on the fact that my own legal analysis was based not on estoppel but an abuse of process. In consequence, and conformably with my earlier judgment, the order of the Court should be that in each case the application for relief be permanently stayed as an abuse of the process of the Court. I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick Associate: Dated: 17 November 1998 Counsel for the Applicant: J Wallace Solicitor for the Applicant: Taylor and Scott Counsel for the Respondent: R Reitano Date of Hearing: 17 November 1998 Date of Judgment: 17 November 1998