Industrial Court of New South Wales CITATION: Cannon and Ors v Regan and Anor [2006] NSWIRComm 309 APPLICANTS Noel Cannon Ian Cannon Jonathan Cannon Phillip Bailey PARTIES: Russell Bailey Maxwell Shaw RESPONDENTS Robyn Janet Regan Micah Regan FILE NUMBER(S): IRC 2728 of 2006 CORAM: Wright J President; Walton J Vice-President; Schmidt J CATCHWORDS: Appeal - Unfair contract - Appeal from decision of judge ordering joinder of further parties - Agreement reached as to disposition of appeal - Leave to appeal a matter for discretion of Full Bench - Leave to appeal granted by consent - Appeal upheld by consent - Costs. HEARING DATES: 22/09/2006 EXTEMPORE JUDGMENT DATE: 09/22/2006 APPLICANT Mr J Phillips SC Solicitor: Mr G Phillips Carroll & O'Dea RESPONDENT Ms E Brus and Mr S Prince of counsel Solicitor: Mr S Dooley Dooley & Associates LEGAL REPRESENTATIVES: FIRST AND SECOND RESPONDENTS ON THE ORIGINAL NOTICE OF MOTION Mr T J Dixon of counsel Solicitor: Mr B Quilty Glasheen & Quilty JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President SCHMIDT J Friday 22 September 2006 Matter No IRC 2728 of 2006 NOEL CANNON AND OTHERS v ROBYN JANET REGAN AND ANOTHER Application by Noel Cannon and others for leave to appeal and appeal against a judgment of Justice Staff given on 22 June 2006 in Matter No IRC 1100 of 2005 JUDGMENT OF THE COURT [2006] NSWIRComm 309 (extempore) 1 The present proceedings involve an application for leave to appeal and an appeal against the judgment of Staff J given on 22 June 2006 in Matter No IRC 1100 of 2005 (see Regan and Anor v Redeemer Baptist School Ltd and Anor (No 2) [2006] NSWIRComm 198). 2 Upon the proceedings commencing today we were advised by Senior Counsel for the appellants that agreement had been reached and Short Minutes of Order were provided setting out the terms of settlement. This document has been marked Exhibit A. There was, however, some discussion as to the appropriate costs order (Order 4) in that document because of the recognition that the matter would not normally need to be returned to Staff J who had dealt with the interlocutory proceedings and had also conciliated the matter. 3 In accordance with the practise of the Court, because his Honour conciliated the matter, his Honour would not normally hear the trial. It has now been agreed by the parties that Order 4 in the proposed terms of settlement would be amended to provide that the costs of the notice of motion and the appeal would be dealt with by the trial judge. Exhibit A has been amended accordingly. The Full Bench are now prepared to make orders in terms of that Exhibit. 4 Before concluding, we note that the orders in Exhibit A involve, first, leave to appeal being granted; second, the appeal being upheld and the substitution of order 1 as made by Staff J, with a revised order; and the matter of costs is to be dealt with as earlier noted. We should make some short observations on the issue of leave to appeal. Full Benches of this Court and, indeed, Full Benches of the Commission, have consistently taken the view, even when there is consent between the parties, that the question of whether or not leave to appeal should be granted always remains a matter for the Full Bench. The consent of the parties is an important consideration, but not a decisive one. 5 We consider this is an appropriate matter in which leave to appeal should be granted, having regard to the consent reached between the parties, who respectively are represented by experienced counsel, and since the disposition of the appeal in this consensual way will lead to an earlier hearing of the trial than might otherwise be the case. 6 We therefore make orders in Exhibit A, as amended in the terms earlier set out. These proceedings are concluded. _________________ 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.