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).' 3 There is no doubt on the evidence that this is an appropriate forum for resolution of this dispute and that the dispute has not already been dealt with in other proceedings in another forum. Of more concern is the question of whether these proceedings are foredoomed to fail, given the orders advanced. Those orders are: 'The Department of Corrective Services develop forthwith and in consultation with the Public Service Association a programme that would realistically allow Mr Mark Bushell to return to grading and status of a District Manager in the Probation & Parole Service.' 4 There is obvious difficulty, as the respondent outlined, with the terms of this order and whether orders in such terms would be made by the Commission, particularly having in mind the grounds on which they are advanced and the history of Mr Bushell's employment by the Department. 5 The respondent raised particular concern that the order as framed would not lead to a final resolution of the dispute, but would rather require the respondent to participate in further negotiations with the union as to the same matters which have already failed to resolve this dispute in conciliation. 6 The Commission is, of course, not bound to make orders in the precise terms sought by any party. On the other hand, parties to an arbitration are entitled to understand the case they have to meet. This includes the order which the Commission is asked to make. As was submitted for the respondent, it is nevertheless not uncommon in proceedings before the Commission for orders sought to be varied or orders to be pressed in the alternative during the course of a hearing. The Commission may also itself frame orders appropriate for a particular case made out. This is consistent with the requirements of section 163 of the Act which relevantly provides: 'The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.' 7 That does not, however, mean that any party should rely on the Commission drafting appropriate orders to reflect the case which is ultimately made out, once it becomes plain that what that party has sought to establish, has not been made out on the evidence. To so approach a case may well be to deny justice to a respondent. 8 This was a point strongly and understandably, in my view, pressed by Mr Yetzotis. At the end of the day the Commission must endeavour to do justice between the parties, having in mind both the orders sought and the evidence made out. 9 In this case, on balance and not without difficulty, I have come to the view that it cannot properly be concluded at this stage of these proceedings that they are foredoomed to failure, even though Mr Yetzotis has advanced some powerful arguments as to why orders in the form pressed by the applicant would not be granted by the Commission in these proceedings. I take the view, however, that the Commission should not lightly reach such a conclusion at this stage of the proceedings, especially in a case where no real doubt as to jurisdiction exists. 10 For all of these reasons, I refuse to make the orders sought and dismiss the notice of motion on that basis. ------------------------ 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.