Industrial Relations Commission of New South Wales in Court Session CITATION: Syddeck Pty Ltd v Transport Workers' Union of New South Wales [2005] NSWIRComm 285 Appellant: Syddeck Pty Ltd PARTIES: Respondent: Transport Workers' Union of New South Wales FILE NUMBER(S): IRC 1325 and 1326 of 2005 CORAM: Walton J Acting President; Boland J; Backman J CATCHWORDS: Appeal - stay of appeal - applications by respondent that leave to appeal and appeal be stayed - appellant failed to comply with orders of Chief Industrial Magistrate at first instance - application by appellant to stay orders of Chief Industrial Magistrate refused - appellant persists in non-compliance with orders at first instance notwithstanding no appeal is lodged against the decision to refuse a stay of those orders - correct approach of Court in relation to application to stay proceedings - consideration of relevant discretionary factors - persistent and deliberate non-compliance with orders - no explanation forthcoming as to why orders have not been complied with - conduct of appellant on respondent's stay application - orders made for stay of leave to appeal and appeal. LEGISLATION CITED: Industrial Relations Act 1996 Australian Authorised Investments Ltd v Nclue Investments Pty Ltd (2002) 122 IR 242 Maldoc Pty Ltd v Bollard (1997) 90 IR 29 CASES CITED: Nutshack Franchise Pty Ltd and others v Smith and Another (1999) 90 IR 355 Syddeck Pty Ltd v Transport Workers' Union, New South Wales Branch [2005] NSWIRComm 115 HEARING DATES: 08/03/2005 DATE OF JUDGMENT: 08/16/2005 Appellant: Mr L. MacInnis, of counsel LEGAL REPRESENTATIVES: Respondent: Mr A. Hatcher, of counsel Solicitors: The Transport Workers' Union of New South Wales JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Walton J, Acting President Boland J Backman J Tuesday, 16 August 2005 Matter No IRC 1325 and 1326 of 2005 Syddeck Pty Ltd v Transport Workers Union of New South Wales Applications by Syddeck Pty Ltd for leave to appeal and appeal against the decisions and orders of the Chief Industrial Magistrate given on 15 January 2003, 20 October 2003 and 22 February 2005 in relation to Matter No 156402 of 2002 and in relation to Matter No 156403 of 2002. JUDGMENT OF THE COURT [2005] NSWIRComm 285 1 These proceedings concern two notices of motion filed by the respondent, the Transport Workers' Union of New South Wales, relating to two applications for leave to appeal and appeal. The notices of motion which are in identical terms, seek orders that the applications for leave to appeal and appeal be stayed until further order. 2 The proceedings arise out of applications by Syddeck Pty Ltd (the appellant) that were filed on 15 March 2005 for leave to appeal and appeal against the decisions and orders of the Chief Industrial Magistrate in Matter Nos. 156403 of 2002 and 156402 of 2002. In relation to those matters, his Honour, Chief Industrial Magistrate Miller made orders in Matter No 156402 of 2002 as follows: 1. That Syddeck Pty Ltd pay to Mr Brian Sloan within 28 days of the date of this order the amount of $63,097.70 which figure includes interest in the amount of $19,174.38. 2. That Syddeck Pty Ltd pay to Mr Brian Sloan within 28 days of the date of this order costs as agreed or assessed. This order will take effect on and from 22 February 2005. In relation to Matter No 156403 of 2002 the Chief Industrial Magistrate ordered: 1. That Syddeck Pty Ltd pay to Mr Zohair Khattab within 28 days of the date of this order the amount of $77,193.70 which figure includes interest in the amount of $25,271.84. 2. That Syddeck Pty Ltd pay to Mr Zohair Khattab within 28 days of the date of this order costs as agreed or assessed. This order will take effect on and from 22 February 2005. 3 Each application for leave to appeal and appeal made on 15 March 2005 also sought a stay of the above orders. The stay applications were heard and refused by Haylen J on 8 April 2005: Syddeck Pty Ltd v Transport Workers' Union, New South Wales Branch [2005] NSWIRComm 115. 4 Before Haylen J the appellant did not file any evidence even though his Honour adjourned the proceedings to afford the appellant the opportunity of filing any evidence upon which it proposed to rely. 5 Notwithstanding the refusal to grant the stay applications, on the evidence before us, the appellant has not made any payments as required by the orders of the learned Chief Industrial Magistrate made in both matters. 6 At no stage has the appellant lodged an application to appeal against the decision of Haylen J. 7 According to the respondent's submissions on the notices of motion, it wrote to the appellant's solicitor on 23 May 2005 requesting an indication as to when the appellant intended to comply with the orders. The appellant has not responded to that letter, nor has it complied with the orders. 8 The respondent submits that the applications for stays of the appeals ought be granted on the grounds that the appellant has failed to comply with the orders of the Chief Industrial Magistrate. The respondent urges the Commission not to lend its process to the appellant who is abusing that process, nor hear the appeals until the appellant has regularised its conduct. 9 The respondent in developing its submissions relied on a number of authorities of this Commission. 10 In the first of the authorities, Maldoc Pty Ltd v Bollard (1997) 90 IR 29, the appellant sought a stay of challenged orders of Patterson C, which was refused. The respondent to the appeal then moved at the hearing of that appeal that the appellant should not be heard until it had complied with the challenged order of the Commissioner. The Full Bench said (at 30): Central to a determination of the motion is the fact that an order of this Commission made over five months ago is not being complied with even in the face of a refusal by the Commission to stay the order pending the appeal. That is enough, in our view, for the motion to succeed. This Commission should not and will not be seen to lend its process to a party abusing that very process. Accordingly, we do not propose to hear the appellant further until it has regularised its conduct. We order that the appeal herein be stayed until further order. 11 The Full Bench in Nutshack Franchise Pty Ltd and others v Smith and Another (1999) 90 IR 355 heard an application by the respondents that the appellant's application for leave to appeal and appeal not be heard until they had complied with orders made by Maidment J at first instance. Those orders were that the respondents be paid the sum of $176,691.95. At no stage had the appellants sought a stay of Maidment J's orders. The Full Bench in exercising its discretion to grant the orders sought by the respondent said (at 360 - 361): ...where an unsuccessful party at first instance has sought to further utilise the jurisdiction of the Court by way of appeal but by expressly eschewing its ability to obtain a stay of the challenged order pending the determination of its appeal — that, in our view, is to abuse the processes of the Court by disclaiming use of the stay facility in relation to a decision which is otherwise final and, it may be added, where the appeal is not even as of right but only by leave. In such a situation, blatant as it may be and without explanation, the power in the Court given by s 162(1) of the Industrial Relations Act to determine its own procedure and by s 162(2)(g) to adjourn proceedings to any time and place is appropriate to be exercised. Indeed, where that situation occurs, as in the present case, we consider the proper course to be adopted, namely to stay the proceedings until the appellant complies with its obligations, does not admit of any exception. 12 The respondent also relied on the Full Bench decision of Australian Authorised Investments Ltd v Nclue Investments Pty Ltd (2002) 122 IR 242 in which the respondent successfully applied for a stay of the appeal proceedings until further order of the Court. In making its application the respondent in Nclue Investments relied upon the Court's approach in Nutshack. The Full Bench concluded that the circumstances were not relevantly distinguishable from the circumstances in Nutshack, nor, that the basis for the exercise of discretion was distinguishable from that in Nutshack. 13 Nclue Investments clarified the operation of Nutshack in circumstances where a stay of proceedings is sought on the ground of abuse of process. In Nutshack the Full Bench emphasised that where it may be deemed appropriate to grant a stay of proceedings on the ground of abuse of process, that this involves the exercise of discretion as opposed to the application of a fixed or an invariable rule. These considerations were addressed by the Full Bench in Nclue Investments as follows: The Full Bench in Nutshack did formulate the principle for which the case might be considered to stand. The principle may be discerned by reference, for example, to p 361 of the report of the judgment; that is, in circumstances which involved an: "... abuse [of] the processes of the Court by disclaiming use of the stay facility in relation to a decision which is otherwise final and, it may be added, where the appeal is not even as of right but only by leave. In such a situation ... the power in the Court given by s 162(1) of the Industrial Relations Act to determine its own procedure and by s 162(2)(g) to adjourn proceedings to any time and place is appropriate to be exercised." Their Honours held: "[W]here that situation occurs ... we consider the proper course to be adopted, namely to stay the proceedings until the appellant complies with its obligations, does not admit of any exception." However, it should be said that, in our view, the intention of the Full Bench in Nutshack , as expressed in the final phrase of the extract cited, was not to limit the exercise of discretion, but to emphasise the seriousness of an abuse of the process of the Court in circumstances considered to be analogous to those dealt with in that case. 14 We respectfully adopt those observations and shall apply them in the present context. 15 Having reviewed the authorities, we conclude that there is a proper basis to exercise our discretion to grant the orders sought by the respondent in the terms proposed in both notices of motion. 16 The appellant sought but was refused a stay of the orders at first instance. No appeal of that decision was brought. Despite ample opportunity to comply with the orders, the appellant has failed to do so. He seeks to prosecute his appeal in this context. 17 Our decision to exercise our discretion in favour of the respondent is reinforced by a number of additional factors. 18 The appellant was represented on the motions by Mr MacInnis of counsel. He frankly conceded that the appellant had refused to comply with the learned Chief Industrial Magistrate's orders, but when asked for an explanation for the appellant's deliberate non-compliance none was forthcoming. Confronted with a similar situation, the Full Bench in Nclue Investments (at [18]) found this a significant factor in its decision to grant a stay of the application for leave to appeal and appeal. 19 Notwithstanding that the appellant had failed to comply with any directions given by the Commission as to the hearing of the motions, the appellant also sought on the respondent's notices of motion to adduce evidence by way of affidavit, even though it gave the respondent no notice of its intention to do so. Mr MacInnis then informed the court that he had not advised the deponent that he might be required for cross-examination in the event the affidavit was read. 20 The appellant was given an opportunity nevertheless to make submissions on the notices of motion. Mr MacInnis responded with a submission that the present circumstances were distinguishable from Maldoc, Nutshack and Nclue Investments on the basis that those cases dealt with orders of the Commission, whereas the present matters concern orders made by the Chief Industrial Magistrate, who is outside the hierarchy of the Commission. We have little difficulty in rejecting that submission as having no basis in law or legal principle. On the contrary, s197 of the Industrial Relations Act 1996 specifically provides a mechanism for appeals against orders made in the Local Court to the Full Bench of the Commission in Court Session. No other law was proffered in support of the appellant's resistance of the motions. 21 The persistent and deliberate default by the appellant to comply with the appeal directions and with its own application for a stay, we find a most serious abuse of the Court's process. Such conduct combined with the continued failure to provide this Court with any explanation for its non-compliance shows a blatant disregard for the Court's process and renders the abuse even more serious. In our view, the discretionary factors overwhelmingly favour the granting of the respondent's application made in the notices of motion. Orders 22 We make the following orders: 1. The application for leave to appeal and appeal filed in IRC 1325 of 2005 is stayed until further order. 2. The application for leave to appeal and appeal in IRC 1326 of 2005 is stayed until further order. _______________________ 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.