Garth v Newcastle City Spares Pty Limited [2003] NSWIRComm 352

Industrial Relations Commission of New South Wales

CITATION : Garth v Newcastle City Spares Pty Limited [2003] NSWIRComm 352 APPLICANT PARTIES : Gregory John Garth RESPONDENT Newcastle City Spares Pty Limited FILE NUMBER: IRC 2416 of 2003 CORAM: Harrison DP CATCHWORDS : Application for costs - Unreasonable failure to agreet to settlement - costs awarded LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 10/10/2003 EXTEMPORE JUDGMENT DATE : 10/22/2003

APPLICANT Mr J Wormington of Counsel LEGAL REPRESENTATIVES: RESPONDENT No appearance

JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP Wednesday, 22 October 2003

Matter No IRC 2416 of 2003 GREGORY JOHN GARTH AND NEWCASTLE CITY SPARES PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

DECISION [2003] NSWIRComm 352

1 A decision issued in this matter on 8 August 2003 [2003] NSWIRComm 245 in which the termination of the applicant's employment was found to be harsh, unreasonable and unjust, founded upon retaliation for refusal to invest in the business.

2 At arbitration proceedings on 5 August 2003 the application was undefended. These circumstances are set out in para 3 of the decision in the following terms: 3 On Hearing Mr J Wormington of Counsel appeared on behalf of the applicant, Mr Gregory Garth. There was no appearance on behalf of the respondent, Newcastle City Spares Pty Ltd. Advice was received by telephone from Mr S Rayfield, solicitor of Rayfield Lawyers informing the Commission that he no longer represented the respondent, but had contacted the respondent on the morning of proceedings, 5 August 2003, who withdrew his instructions and advised him that there was no intention to appear, asserting that the business no longer existed.