Pet Porpoise Pools Pty Limited v Dunstan [2001] NSWIRComm 167

Industrial Relations Commission of New South Wales

CITATION : Pet Porpoise Pools Pty Limited v Dunstan [2001] NSWIRComm 167 APPLICANT/APPELLANT Pet Porpoise Pools Pty Limited PARTIES : RESPONDENT Benjamin Peter Dunstan

FILE NUMBER: IRC 2623 of 2001 CORAM: Wright J President; Hungerford J; Tabbaa C CATCHWORDS : Appeal - Application for leave to appeal - Unfair dismissal - Leave to appeal refused - Appeal dismissed. LEGISLATION CITED : Industrial Relations Act 1996 s 84 s188 HEARING DATES: 07/17/2001 EXTEMPORE JUDGMENT DATE : 07/17/2001

APPLICANT/APPELLANT Mr J J E Fernon of Counsel Solicitors: Toomey Pegg Drevikovsky LEGAL REPRESENTATIVES: (Mr H Lee)

RESPONDENT Mr P Dunstan (by leave)

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: WRIGHT J, President HUNGERFORD J, TABBAA C

Tuesday 17 July 2001

Matter No IRC 2623 of 2001 PET PORPOISE POOLS PTY LIMITED AND BENJAMIN PETER DUNSTAN Application by Pet Porpoise Pools Pty Limited for leave to appeal and appeal against a decision of Commissioner McKenna given on 21 March 2001 in Matter No IRC 3999 of 2000.

DECISION OF THE COMMISSION (Extempore) [2001] NSWIRComm 167

1 These proceedings involve an application for leave to appeal and, subject to leave being granted, an appeal by Pet Porpoise Pools Pty Ltd (the appellant) from the decision of McKenna C of 21 March 2001, in which relief was granted to the respondent in s 84 proceedings brought by him and in respect of which the appellant was ordered to pay the respondent the amount of $5,000. 2 The appellant was permitted by the Full Bench without demur from the respondent to develop its submissions both as to leave to appeal and the appeal proper. We have closely considered those submissions, which were comprehensively put by Mr Fernon, counsel for the appellant. Notwithstanding the careful way those submissions were made, we do not consider the appellant has demonstrated that the statutory criteria set down in s 188 of the Industrial Relations Act 1996 for the grant of leave has been satisfied, or that otherwise leave to appeal should be granted. 3 In accordance with the practice of Full Benches of this Commission and its predecessors, it is not appropriate to give reasons for the decision to decline leave to appeal. However, we consider the findings made by the commissioner most pertinent to the relief granted, were open to her and, although certain issues of principle were raised as providing a basis for the grant of leave, we do not consider these proceedings raise those issues in a way appropriate for consideration or reconsideration. 4 The Full Bench makes the following orders: 1. Leave to appeal declined. 2. Appeal dismissed. 3. The stay of the order made on 22 May 2001 is lifted. 4. The Registrar is directed to pay as soon as practicable to the respondent, Mr Benjamin Peter Dunstan, the sum of $5,000 paid into Court by the appellant. _____________________________________