Industrial Relations Commission of New South Wales in Court Session CITATION: Joseph Nakat & Anor v UBS Capital Markets Australia Holdings Limited [2005] NSWIRComm 257 Applicants: Joseph Nakat Robert Bucci PARTIES: Respondent: UBS Capital Markets Australia Holdings Limited FILE NUMBER(S): IRC6284&6285 of 2003 CORAM: Kavanagh J CATCHWORDS: Application of s108A conceded - change of solicitor - conciliation continued - in circumstances where conciliation continued and parties conceded s108 application leave to discontinue granted - application for costs rejected LEGISLATION CITED: Industrial Relations Act 1996 s108A Aveling v UBS Capital Markets Australia Holdings Ltd (2004) 135 IR 98 CASES CITED: HEARING DATES: 07/15/2005 EXTEMPORE JUDGMENT DATE: 07/15/2005 First Applicant: Solicitors: Mr T. Unsworth TressCox Second Applicant in person LEGAL REPRESENTATIVES: Respondent: Mr A.B. Gotting of counsel Solicitors: Mr D. Fitzharris Shanahan Tudhope JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Kavanagh J 15 July 2005 Matter No IRC 6284 of 2003 JOSEPH NAKAT v UBS CAPITAL MARKETS AUST HOLDINGS LIMITED Application under s.106 of the Industrial Relations Act 1996 Matter No IRC 6285 of 2003 ROBERT BUCCI v UBS CAPITAL MARKETS AUST HOLDINGS LIMITED Application under s.106 of the Industrial Relations Act 1996 EX TEMPORE JUDGMENT [2005] NSWIRComm 257 1 These matters came before me today by way of a re-listing by the Court. 2 The previous solicitor had filed a Notice of Ceasing to Act and Mr T. Unsworth, solicitor, sought leave to file a Notice of Appearance in court today. He sought to represent Mr Nakat. Mr Bucci appears for himself. Mr A.B. Gotting, of counsel, appears for UBS Capital Markets Australia Holdings Limited (the respondent). 3 It is relevant to recite the history of the matter: · On 24 June 2002, s108A of the Act commenced operation. · On 31 October 2003, Summonses for Relief under s106 of the Act were filed by each applicant. · On 19 January 2004, the respondent filed a Notice of Motion requesting the court to make a declaration under s108A of the Act that the court did not possess jurisdiction to hear the Summonses for Relief. · On 15 September 2004, the decision in Aveling v UBS Capital Markets Australia Holdings Ltd (2004) 135 IR 98 was handed down by the Full Bench of the Court, which authority considered the effect of s108A of the Act. 4 In the Summonses for Relief, the applicants assert they were hired to start a financial unit within the respondent's operation. Both applicants served for nine months in establishing this unit. They were then given notice that their services were to be terminated as the unit was not to continue operating. They were given three months' notice at base rate, each of them having different earnings under their individual employment contract. The Summonses for Relief dispute other matters but also the notice provision. 5 Conciliation failed and the matters were stood over for argument in relation to the Notices of Motion for declarations under s108A of the Act. 6 On 9 May 2005, the matters were called on for mention by the court and both parties sought to have the matters stood over for further mention. I declined to make that order. Given the passage of time since the filing of the Summonses I determined, as is clear from the transcript and acknowledged in the respondent's affidavit, there should either be further conciliation or a hearing of the Notices of Motion. The matters were set down on today's date, 15 July 2005. 7 A further attempt to conciliate the matters has taken place and failed. 8 The respondent pressed the court for a hearing of the Notice of Motion. However, Mr Unsworth made an application for leave to discontinue the Summons, conceding the earnings of Mr Nakat would be such as to allow the application of the bar as recited in s108A of the Act. Mr Bucci joins in the application for leave to discontinue. He made a similar concession as to his earnings. 9 The respondent opposed the leave application. Mr Gotting submitted before me the respondent had on two separate occasions called on Mr Nakat to withdraw his action - once by telephone and once by way of letter from the respondent's solicitors. There was no telephone conversation with Mr Bucci but the respondent's solicitors also sent him two letters inviting Mr Bucci to discontinue. These communications occurred after the applicants' previous solicitor had filed a Notice of Ceasing to Act. 10 The decision of Aveling was not delivered until 15 September 2004, a year after the filing of the Summonses for Relief. In circumstances where the conciliation procedure has continued up until today's date, and where the Notice of Ceasing to Act was filed before the applicants received the respondent's correspondence inviting them to discontinue, and taking into account the advice from Mr Unsworth and the concession made by both applicants today, I grant leave to both applicants to discontinue the proceedings in Matter Nos IRC6284 and 6285 of 2003. 11 The respondent seeks costs of the conciliation, costs for the preparation of its Notice of Motion, and costs for various appearances. The respondent places reliance upon the two letters sent to Mr Bucci and the telephone communication and letter sent to Mr Nakat inviting them to discontinue the proceedings. As neither applicant took up the respondent's offer, the respondent submits it is entitled to costs. Further, the respondent submits the Notice of Motion has been on foot since January 2004 and the applicants had time to receive advice on this issue. 12 In the circumstances, I note the concession made by Mr Unsworth on behalf of Mr Nakat and adopted by Mr Bucci today and taking into account both applicants did not have legal representation when they received the correspondence from the respondent and given conciliation did not finalise until today, I reject the claim for costs made by the respondent. 13 I give leave to the applicants to discontinue their proceedings. The Notice of Discontinuance is to be filed within 24 hours. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.