PSA and Department of Corrective Services [2000] NSWIRComm 84

Industrial Relations Commission of New South Wales

CITATION : PSA and Department of Corrective Services [2000] NSWIRComm 84 APPLICANT: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales PARTIES : RESPONDENT: Department of Corrective Services FILE NUMBER: 4082 of 1999 CORAM: Schmidt J CATCHWORDS : Notice of Motion - Alleged that orders sought involved an abuse of process - Commission's power to dismiss proceedings for abuse of process - Question as to whether proceedings are foredoomed to failure given the orders advanced - Orders refused and motion dismissed CASES CITED : Walton v Gardiner (1993) 177 CLR 378 HEARING DATES: 05/05/2000 EXTEMPORE JUDGMENT DATE : 05/05/2000

APPLICANT: Mr P Ginters of counsel SOLICITORS: Jones Staff & Co LEGAL REPRESENTATIVES: RESPONDENT: Mr N Yetzotis, solicitor Employment and Administrative Law Branch Department of Corrective Services

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

CORAM: Schmidt J

DATE: 5 May 2000

MATTER NUMBER IRC 4082 OF 1999 Notification under section 130 by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales of a dispute with Department of Corrective Services re disciplinary proceedings

JUDGMENT (extempore) 1 In this matter, I am satisfied that the orders sought by the Respondent in the Notice of Motion should be dismissed. The case advanced was that the orders sought by the union, involved an abuse of process, as that concept is to be understood having regard to the approach of the High Court in Walton v Gardiner (1993) 177 CLR 378. While there was some question when this preliminary point was listed for hearing, that an issue as to the Commission's jurisdiction to hear the matter was being raised, at today's hearing it became clear that this was not being advanced by the Respondent. I am satisfied, having regard to the notification of dispute initiating these proceedings, and the terms of the orders sought, that the Commission has jurisdiction to entertain this matter. 2 I am also satisfied that an abuse of process case has not been made out. There was no question that the Commission had power to dismiss the application in these proceedings if it involved an abuse of process. In Walton the High Court said, at page 393: 'Thus it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail (See, e.g., Metropolitan Bank v. Pooley (1885), 10 App. Cas. 210, at pp. 220-221; General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964), 112 C.L.R. 125, at pp. 128-130). Again, proceedings within the jurisdiction of a Court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that Court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them (See, generally, Voth v. Manildra Flour Mills Pty. Ltd. (1990), 171 C.L.R. 538). Yet again, proceedings before a Court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings (See, e.g., Reichel v. Magrath (1889), 14 App. Cas. 665, at p.668; Connelly v. Director of Public Prosecutions , [1964] A.C. 1254, at pp. 1361-1362).'