Zografakis and Broadlex Cleaning Australia Pty Limited [2003] NSWIRComm 286

Industrial Relations Commission of New South Wales

CITATION : Zografakis and Broadlex Cleaning Australia Pty Limited [2003] NSWIRComm 286 APPLICANT: PARTIES : Gestimani Zografakis RESPONDENT: Broadlex Cleaning Australia Pty Limited FILE NUMBER: 2391 of 2003 CORAM: Sams DP Employment protection - redundancy of employee - proceedings under s84 of Industrial Relations Act - proceedings before Industrial Magistrate - proceedings under Employment Protection Act - terms of settlement - decision of the Commission - whether terms of settlement prevented further claim to redundancy payments - offers of re-employment - finality of litigation - discontinuance of proceedings - notice of motion - abuse of process - whether notice of motion an abuse of process - principles considered - costs sought against applicant's legal representative - rules of the Commission. CATCHWORDS : Held, respondent entitled to regard claim for redundancy payments as settled - claim for redundancy payments acknowledged - terms of settlement cannot be ignored - decision of the Commission final - financial resources of employer not relevant - no express provision to dismiss a matter for abuse of process - Commission obliged to protect the administration of justice and it's own procedures - power exercisable in civil proceedings - matter concluded by terms of settlement and Commissioner's decision - manifestly unfair for respondent to face three matters over the same issue - notice of motion not an abuse of process - notice of motion granted - application dismissed - premature to determine costs application - requirements of r209 - power to award costs under the Employment Protection Act not decided - costs reserved - parties to be heard - notice of motion required. LEGISLATION CITED : Industrial Relations Act 1996 Employment Protection Act 1982 Broken Hill Chamber of Commerce and Construction Forestry Mining and Energy Union (NSW Branch) [2002] NSWIRComm 244 General Steel Industries Inc v Commissioner for Railways (NSW) and others (1964) 112 CLR 125 Jago v District Court (NSW) (1989) 168 CLR 23 Johnson v Gore Wood & Co [2002] 2 AC 1 Miller v University of New South Wales [2003] FCAFC 180 Moevao v Department of Labour [1980] 1 NZLR 464 Moir v Calokerinos & Anor and Castle v Calokerinos & Anor [2003] NSWIRComm 82 CASES CITED : Nisbet v Kilfoyle t/as Kilfoyle Earthmoving (unreported, Full Bench, Cahill VP, Bauer, Marks JJ, CT1120/96, 18 December 1996) Outboard World v Muir (1993) 51 IR 167 Rogers v the Queen (1994) 181CLR 251 Shop, Distributive and Allied Employees' Association, New South Wales and W D & H O Wills Holdings Ltd [2000] NSWIRComm 98 Walton v Gardiner (1992) 177 CLR 378 Weisser v Spur Group Pty Limited [2003] NSWIRComm 79