Industrial Relations Commission of New South Wales CITATION : Zografakis and Broadlex Cleaning Australia Pty Limited [2004] NSWIRComm 52 APPELLANT: Gestimani Zografakis PARTIES : RESPONDENT: Broadlex Cleaning Australia Pty Limited FILE NUMBER: IRC 5405 of 2003 CORAM: Wright J President; Kavanagh J; Ritchie C CATCHWORDS : Appeal - Employment protection - Procedural application - Proceedings struck out as abuse of process - Power of Commission to strike out for abuse of process yet to be determined authoritatively - Leave to appeal declined. CASES CITED : Zografakis and Broadlex Cleaning Australia Pty Limited [2003] NSWIRComm 286 HEARING DATES: 03/10/2004 EXTEMPORE JUDGMENT DATE : 03/10/2004 APPELLANT: Mr A Searle of counsel Kingsford Legal Centre (Ms Susan Winfield) LEGAL REPRESENTATIVES: RESPONDENT: Mr R Reitano of counsel Henderson Workplace Lawyers (Mr Gordon Henderson) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President KAVANAGH J RITCHIE C Wednesday 10 March 2004 Matter No IRC 5405 of 2003 GESTIMANI ZOGRAFAKIS AND BROADLEX CLEANING AUSTRALIA PTY LIMITED Application by Gestimani Zofrafakis for leave to appeal and appeal against a decision of Deputy President Sams given on 9 September 2003 in Matter No IRC 2391 of 2003 DECISION OF THE COMMISSION (Extempore) [2004] NSWIRComm 52 1 This is an application for leave to appeal and, subject to leave being granted, an appeal against a decision delivered on 9 September 2003 by Deputy President Sams in the matter entitled Zografakis and Broadlex Cleaning Australia Pty Limited [2003] NSWIRComm 286. This case has a long and unfortunate history. It is not however necessary to recite the history here since it is set out in a substantially uncontentious way in the decision under appeal. 2 The Full Bench has been helpfully assisted by counsel for both parties in their detailed written and oral submissions. In particular, counsel for the appellant has referred to a number of errors of principle that are said to be found in the decision of Deputy President Sams. Reliance is also placed on a number of factual errors said to have occurred at first instance. 3 We have given earnest consideration to this matter and indeed after the conclusion of the addresses of counsel we recommended to the parties that they consider again the possibility of settlement. We also made available a member of the Full Bench, Commissioner Ritchie, to assist the parties. Settlement did not however occur. 4 We have come to the conclusion, albeit with some reluctance, that leave to appeal should be declined. We do so essentially on the basis that, on balance, any further proceedings before a Member of the Commission in this matter are likely to produce no different outcome in respect of the appellant's application. The application for leave to appeal therefore does not satisfy the statutory requirement for leave to be granted. 5 In reaching this conclusion it is to be stressed that the question whether the Commission has power to dismiss proceedings for abuse of process is yet to be determined on an authoritative basis, as is the nature of the case required to grant such an application, if the requisite power to do so exists. 6 The Full Bench does not consider that these proceedings provide an appropriate occasion to determine such issues. The Full Bench therefore makes the following orders in disposition of these proceedings: 1. Leave to appeal declined. 2. Appeal dismissed. 7 It is also appropriate to record that the respondent has made it clear in a practical sense that the notice of motion filed in the proceedings at first instance seeking costs in those proceedings will not be proceeded with. The Full Bench considers that is an appropriate course. _____________________ 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.