Industrial Relations Commission of New South Wales in Court Session CITATION : Pride v Mark Hansen Real Estate Pty Limited [2003] NSWIRComm 239 APPELLANT Joy Pride PARTIES : RESPONDENT Mark Hansen Real Estate Pty Limited FILE NUMBER: IRC 6349 of 2002 CORAM: Wright J President; Walton J Vice-President; Boland J Appeal - Practice and procedure - Decision of Chief Industrial Magistrate holding that proceedings were defective - Decision of Chief Industrial Magistrate that there was no relevant provision permittting curing of defect - Provision of Regulation and previous Full Bench decision not drawn to Chief Industrial Magistrate's attention - Relevant power existed by virtue of cl 43(1) of Regulation and s 170(3) of the Act - Full Bench approves agreement of parties to uphold appeal and remit proceedings - Costs. CATCHWORDS : Practice and procedure - Appeal - Decision of Chief Industrial Magistrate holding that proceedings were defective - Decision of Chief Industrial Magistrate that there was no relevant provision permittting curing of defect - Provision of Regulation and previous Full Bench decision not drawn to Chief Industrial Magistrate's attention - Relevant power existed by virtue of cl 43(1) of Regulation and s 170(3) of the Act - Full Bench approves agreement of parties to uphold appeal and remit proceedings - Costs. Award - Award recovery proceedings before Chief Industrial Magistrate - Appeal - Practice and procedure - Decision of Chief Industrial Magistrate holding that proceedings were defective - Decision of Chief Industrial Magistrate that there was no relevant provision permittting curing of defect - Provision of Regulation and previous Full Bench decision not drawn to Chief Industrial Magistrate's attention - Relevant power existed by virtue of cl 43(1) of Regulation and s 170(3) of the Act - Full Bench approves agreement of parties to uphold appeal and remit proceedings - Costs. Industrial Relations Act 1996 s 170 LEGISLATION CITED : Industrial Relations Commission (General) Regulation 2001 cl 43 Industrial Relations Commission (General) Regulation 1996 cl 36 Suitors' Fund Act 1951 s 6 CASES CITED : Wadhera v Habib [2002] NSWIRComm 1050 HEARING DATES: 07/28/2003 EXTEMPORE JUDGMENT DATE : 07/28/2003 APPELLANT J Capsanis, Solicitor J P Capsanis & Co LEGAL REPRESENTATIVES: RESPONDENT Mr B K B Cross of counsel Instructed by Mr G Paterson of The Real Estate Employers' Federation of NSW JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J Monday 28 July 2003 Matter No IRC 6349 of 2002 JOY PRIDE v MARK HANSEN REAL ESTATE PTY LIMITED Application by Joy Pride for leave to appeal and appeal against a decision of Chief Industrial Magistrate Miller given on 21 October 2002 in Matter No CIM161326/01. JUDGMENT OF THE COURT (Extempore) [2003] NSWIRComm 239 1 The appellant, who is a former employee of the respondent, seeks leave to appeal and, subject to leave being granted, also appeals against the decision given on 21 October 2002 by the Chief Industrial Magistrate in which his Worship determined that the application before him was defective as it had not been signed or completed in accordance with the requirements of the relevant section of the Industrial Relations Act 1996 or the relevant provision of the Industrial Relations Commission (General) Regulation 2001. 2 The Court has however been advised that the parties have substantially reached agreement in respect of the proceedings, with the exception of the issue of costs. The terms of the agreement are as follows: 1. The Appellant has agreed to discontinue the element of the appeal relating to the Chief Industrial Magistrate's determination that costs are not appropriate in the small claims jurisdiction; and 2. The Respondent has agreed to the making of consent orders quashing the decision of the Chief Industrial Magistrate regarding the element of the appeal that challenges the determination to dismiss the original proceedings, and for the original claim to be referred back to the Chief Industrial Magistrate for determination on its merits; and 3. The matter of costs of the appeal be decided by the Commission in the context of the Appellant's intention to press for such costs and the Respondent's position to oppose such costs; and 4. In the event of costs being awarded against the Respondent to the appeal, the matter of the Respondent's intention to make an application for an indemnity certificate pursuant to the Suitors Funds Act by reason of the circumstances of the case. It is unnecessary for the Court to make any further comment concerning the first paragraph of the parties' agreement. Leave to discontinue in the relevant respect is granted. 3 The second aspect of the agreement involves an application to the Full Bench that the Court, by consent, grant leave to appeal, quash the decision of the Chief Industrial Magistrate dismissing the proceedings and remit them to his Worship for determination on the merits. It is of course a matter for the Full Bench whether it is prepared to act on the agreement of the parties. The fact of the agreement is nevertheless a very material consideration in the determination of the matter. 4 There is a more compelling basis, however, in this case for the agreement to be embodied in orders of the Court. This is because his Worship's decision appears to have been made per incuriam or through oversight. His Worship in dismissing the application before him made plain his view that: There appears to be no simple cure to this defect provided by the Act or the Rules of the Industrial Relations Commission in Court Session to correct this defect. 5 His Worship's attention was apparently not drawn to either clause 43 of the Industrial Relations (General) Regulation 2001 or to the judgment of the Full Bench of this Court in Wadhera v Habib [2002] NSWIRComm 1050, which referred to, and made plain that there was, a provision available to the Chief Industrial Magistrate to cure the difficulty or irregularity identified. The terms of clause 43(1) of the Regulation (the counterpart of clause 36(1) of the 1996 Regulation which was applied in Wadhera v Habib) are: 43 Industrial Magistrate civil procedure (1) For the purposes of section 383 of the Act, the provisions of the Act, the regulations and rules of the Commission as to the practice and procedure of the Commission in Court Session (except in criminal proceedings) apply, with all necessary modifications, to proceedings before the Chief Industrial Magistrate or other Industrial Magistrate. 6 The effect of that provision is relevantly to incorporate s 170(3) of the Industrial Relations Act which provides: (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. 7 We consider that provision provides the necessary power to cure the defect and, perhaps more significantly, requires that, in this case, the Chief Industrial Magistrate act on the basis that the proceedings were properly commenced, subject to the power in s 170(4) to set aside the proceedings or a step taken in them. The discretion provided by the latter provision should be exercised judicially having regard to all relevant circumstances including, for example, any actual prejudice caused to the respondent by the irregularity and any actual, as opposed to apparent or technical, lack of authorisation for the commencement of the proceedings. 8 We now deal with the issue of costs in respect of which the respondent has made a detailed and helpful submission pointing to the fact that there were two elements raised in the appeal, one of which was compromised by the first paragraph of the parties' agreement set out earlier, and the second by its consent, given on the basis of the judgment in Wadhera v Habib, and its agreement to the remitter of the proceedings to the Chief Industrial Magistrate. 9 We consider there is a public interest in these proceedings being dealt with in the way they have. The proceedings raise an important principle of law and of practice in this Court and specifically in proceedings before the Chief Industrial Magistrate and before other Industrial Magistrates. 10 The question of costs in this matter is rather finely balanced, although it seems to us, having regard to the foreshadowed application by the respondent to seek a certificate under the Suitors' Fund Act 1951, that the appropriate course is to make an order for costs in favour of the appellant but that the costs order be limited to such sum as is recovered by the respondent from the Suitors Fund in respect of the certificate that we have decided should appropriately be granted. We therefore make orders, as follows. 11 Orders are made as to the appeal in terms of those set out in paragraph [3] above. As to the question of costs, we propose to make orders limiting the amount to be recovered in the manner earlier discussed but also to give liberty to apply should the form of orders made present any difficulty to the parties. We therefore make the following additional orders: 1. The respondent shall pay the appellant's costs of the appeal. 2. The respondent shall have a certificate pursuant to the provisions of s 6 of the Suitors' Fund Act 1951 if otherwise entitled. 3. The costs ordered to be paid to the appellant pursuant to order 1 above shall be limited to the amount of the appellant's costs recovered by the respondent by virtue of the certificate granted pursuant to the Suitors' Fund Act 1951. 4. The parties have liberty to apply in respect of the form of the costs order in the event of any difficulty being raised by those administering the Suitors' Fund. 12 These proceedings are therefore in substance concluded. It is not envisaged that there would be any difficulty which would require the liberty to apply to be exercised. It is however available if needed. The proceedings will be remitted formally to his Worship as soon as practicable. ____________________________________ 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.