Industrial Relations Commission of New South Wales in Court Session CITATION: T&M Industries (Aust) Pty Ltd & Anor v WorkCover Authority of NSW (Inspector Sequeira) [2005] NSWIRComm 273 First Appellant: T&M Industries (Aust) Pty Ltd Second Appellant: PARTIES: Terrence Tisdale Respondent: Inspector Sequeira FILE NUMBER(S): IRC6274 of 2003 CORAM: Kavanagh J CATCHWORDS: OHS appeal - continual breach of procedural orders by appellants - self executing orders effected - appellants to pay costs of respondent LEGISLATION CITED: Industrial Relations Commission Rules 1996 HEARING DATES: 07/27/2005 EXTEMPORE JUDGMENT DATE: 07/27/2005 Appellants: Mr T. Tisdale (for both appellants) LEGAL REPRESENTATIVES: Respondent: Ms P.F. Lowson of counsel Solicitors: Ms R. E. Sutton Moray & Agnew JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Kavanagh J 27 July 2005 Matter No IRC 6274 of 2003 T&M INDUSTRIES (AUST) PTY LTD AND ANOR v WORKCOVER AUTHORITY OF NSW (INSPECTOR SEQUEIRA) Application for leave to appeal and appeal against the decision and orders of Magistrate Maughan given on 9 September 2003 and 13 October 2003 in matter Nos 20242200/02/2, 20242226/02/2, 20242234/02/2 and 20242253/02/2 EX TEMPORE JUDGMENT (on delegation) [2005] NSWIRComm 273 1 This matter has a long history. The appellants have breached a number of orders given by this court which, on delegation from the Full Bench, was preparing the matter for appeal. Given those orders were not complied with I referred the matter back to the Full Bench. 2 The Full Bench heard argument as to the breaches of procedural orders and on 16 May 2005 issued further directions and orders for the preparation of the appeal hearing. It directed a number of self executing orders if those orders were breached. 3 On 13 July 2005, the matter came back before me again, on delegation, as the appellants had applied for a variation of the Full Bench orders of 16 May 2005. 4 However, on 13 July 2005, in canvassing the orders of the Full Bench, it came to the attention of the court there had been non-compliance with other directions and orders as well as the matters to which the variation for orders application was directed. The breaches related to the failure to make a payment into court and the failure to endeavour to place the first named appellant, the named company, back on the company register. 5 I accepted the assurances of the solicitor acting on behalf of T&M Industries (Aust) Pty Ltd and Mr Tisdale that everything would be righted. I therefore, further extended the Stay and, amongst other orders, ordered the $10,000 as security for the respondent's costs on appeal be payable into court by 4pm on 15 July 2005. The court re-stated the self executing orders and noted those orders also covered not only the procedural orders but also the orders for the payment into court and the re-registration of the company (by the relevant stated dates). 6 Since receiving the assurances on behalf of T&M Industries (Aust) Pty Ltd and Mr Tisdale, the solicitor, who gave the assurance on behalf of the appellants, has gone from the record. Another solicitor filed a Notice of Appearance for both applicants, T&M Industries (Aust) Pty Ltd and Mr Tisdale and today that new solicitor appeared before the court as a matter of courtesy to inform the court his instructions were withdrawn this morning. Mr Tisdale announced he appeared for himself and the first appellant today. 7 Mr Tisdale concedes there was no compliance with the order of the court that he was to pay into court the sum of $10,000 by 4 pm on 15 July 2005 as security for the respondent's costs of the appeal. 8 Mr Tisdale, however, argues before me that in accordance with the powers of the Court under Industrial Relations Commission Rule 88(1), this court should give a waiver to the appellants as, while they did not comply with the directions on 13 July 2005, the money was paid on 20 July 2005 into the Industrial Magistrate's Court. It was received in this Commission's Registry on 25 July 2005. 9 Mr Tisdale argues he tried to pay the monies on time and presents three documents he relies on to support that assertion for the court's perusal. 10 The first document is a photocopy headed "Jobs Query" and it asserts an article with Bar Code No. 30007483 was picked up from address "T&M Industries, 23 Britton Street, Smithfield" at 9.39 am on 15 July 2005 to be delivered to "the City". Mr Tisdale asserts what was picked up was the cheque. 11 A second photocopied document has no heading on it. It gives a date "15 July 2005" and suggests something was to be delivered to: "Moray & Agnew". The Bar Code was No. B30007483. 12 A third photocopied document, appears to be from "Clipper Parcels" dated 18 July 2005. It states "To: Moray & Agnew" and "Re-direction" but it gives a different Bar Code No. B30007484. 13 Another photocopied document with no explanation was tendered which has a Bar Code No. B30007485. I do not know the relevance of that document. 14 Moray & Agnew are solicitors for the prosecution. Ms P. Lowson, of counsel, appearing for the prosecution assures the Court neither the solicitors receptionist nor the solicitor in charge of the file recollect receiving or re-directing any cheque from either T&M Industries (Aust) Pty Ltd or Mr Tisdale on either the 15 July 2005, or 18 July 2005. 15 Mr Tisdale argues, as it is agreed between the parties a cheque in the sum of $10,000 dated 13 July 2005 was received by the Cashier at the Chief Industrial Magistrate's Court at 2pm on 20 July 2005, and under Rule 88(1) of the Industrial Relations Commission Rule 1996, this court has sufficient evidence before it to use its power to waive compliance with the court's orders. He submits the monies have been paid into court now and a waiver is proper. 16 Mr Tisdale, in the alternative, argues before me that in accordance with Rule 179 of the Industrial Relations Commission Rules 1996, I should refer this matter back to the Full Bench. I reject this application. I have been delegated again by the Full Bench to conduct these interlocutory procedures. 17 The court has already used its power to waive compliance with its orders on T&M Industries (Aust) Pty Ltd and Mr Tisdale, the appellants, on a number of occasions. The court has set aside and extended the self executing orders. 18 Mr Tisdale was informed by this court on 13 July 2005, that if the sum of $10,000 was not paid into court by 4pm on 15 July 2005, the self-executing orders would be effective. Those orders read: 7. (i) the appeal is dismissed. (ii) the stay is lifted. 19 I reject the submissions of Mr Tisdale. I do not find the documentation supports Mr Tisdale's various explanations given on transcript as to the reasons for the late payment of monies and the associated further breach of the orders of this court. 20 The order of 13 July 2005 was very clear. The sum of $10,000 had to be paid into the court by 4pm on 15 July 2005. None of the documentation placed before me satisfies that the appellants made an endeavour to pay into court by the relevant time the sum of $10,000 as security for the respondent's costs on appeal. 21 I find the self executing orders have effect. 22 The self-executing orders are such that I call on the respondent in accordance with Order 7(iv) of the orders of the Full Bench on 16 May 2005, and will hear any application regarding indemnity costs. 23 The respondent does not press for indemnity costs. 24 I endorse the following self effecting orders: 1. The appeal is dismissed. 2. The Stay is lifted. 3. The appellants to pay the respondent's cost of the appeal. 25 I order the appellants to pay the respondent's costs of today. 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.