Notaras v Knight [2008] NSWIRComm 219

Industrial Court of New South Wales

CITATION: Notaras v Knight [2008] NSWIRComm 219

APPELLANT PARTIES: Irene Notaras RESPONDENT Stephanie Knight

FILE NUMBER(S): IRC 850 of 2008

CORAM: Marks J; Schmidt J; Kavanagh J

CATCHWORDS: Appeal - Anshun principle - Appeal against interlocutory decision of Chief Industrial Magistrate refusing to strike out second claim for underpayment of award wages - first claim for underpayment of wages under an award - settled - second claim for underpayment of wages over different time frame - appellant sought to have second claim struck out as an abuse of process and application of Anshun estoppel principle - HELD - proceedings brought in tranches to enable them to be dealt with as small claims - strategy designed to avoid policy of legislation - no right to 'elect' to proceed by way of small claim - respondent entitled to be heard as to how matter should proceed - industrial court must 'decide' to deal with proceedings as a small claim - necessary to consider all circumstances of proceedings when applying Anshun principle - leave to appeal granted - both sets of proceedings cover issues that are part of the same subject matter of the litigation - splitting the claim to allow it to be litigated using the small claims procedure amounts to abuse of process - appellant agreed to compromise first claim knowing that respondent intended pursuing further proceedings - appellant made no suggestion that compromising the first claim would be raised as a bar to institution of second proceedings - unable to characterise second claim as abuse of process - appeal dismissed

LEGISLATION CITED: Industrial Relations Act 1996 s123, s188, s197, s379