Tapia v Emibarb Pty Limited trading as Lagoon Seafood Restaurant [2005] NSWIRComm 232

Industrial Relations Commission of New South Wales

CITATION: Tapia v Emibarb Pty Limited trading as Lagoon Seafood Restaurant [2005] NSWIRComm 232

Applicant/first respondent on Notice of Motion Narda Tapia

Respondent/applicant on Notice of Motion PARTIES: Emibarb Pty Limited t/as Lagoon Seafood Restaurant

Second respondent on Notice of Motion Paul Matters

FILE NUMBER(S): 1551 of 1998

CORAM: Backman J

Costs - first Notice of Motion - costs sought by Emibarb Pty Limited ("Emibarb") in relation to proceedings brought by Narda Tapia ("Mrs Tapia") under s213 of the Industrial Relations Act 1996 ("the Act") - the proceedings heard by Glynn J - application of s181 of the Act - interrelationship between s181(1) and s181(2) where proceedings heard by the Commission not in court session - whether Mrs Tapia liable to pay costs under s181(2)(a) or s181(2)(b) because the conduct of her non-legal representative, Paul Matters ("Mr Matters") could be attributed to her on the principles of agency - whether refusal of a settlement offer made during the proceedings, where the remedy sought under s213 was damages, made the application under s213 frivolous or vexatious - whether commutation of rights under the workers compensation legislation in relation to a work related injury was a bar to obtaining damages under s213 - meaning of "frivolous" and "vexatious" - meaning of instituting proceedings "without reasonable cause" - factual issues needing determination in the proceedings - application under s213 not frivolous or vexatious - proceedings under s213 not instituted without reasonable cause - first Notice of Motion dismissed.