Carroll v Carroll [2008] NSWIRComm 103

Industrial Relations Commission of New South Wales in Court Session

CITATION: Carroll v Carroll [2008] NSWIRComm 103

SHANE CARROLL Appellant PARTIES: PATRICK CARROLL Respondent

FILE NUMBER(S): IRC 189 of 2008

CORAM: Schmidt J; Staff J; Backman J

CATCHWORDS: Appeal - leave to appeal and appeal from a decision - notice of discontinuance by appellant - discontinuance opposed - unrepresented litigants -proceedings discontinued - costs

LEGISLATION CITED: Industrial Relations Act 1996

DATE OF JUDGMENT: 23 May 2008

APPELLANT: Shane Carroll, unrepresented LEGAL REPRESENTATIVES: RESPONDENT: Patrick Carroll, unrepresented

JUDGMENT:

- 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: SCHMIDT J STAFF J BACKMAN J

23 May 2008

Matter No IRC 189 of 2008

SHANE JOSEPH CARROLL V PATRICK JOHN CARROLL T/AS SYDNEY OFFICE EQUIPMENT

Application by Shane Joseph Carroll for leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart given on 29.1.2008 in matter No. CIM 58312/4 JUDGMENT

[2008] NSWIRComm 103

1 In these proceedings Mr Shane Carroll sought leave to appeal and appeal from a decision of Chief Industrial Magistrate Hart, given on 29 January 2008. A stay of the orders made below was also sought, but that application was not pressed and was listed for hearing, together with the application for leave to appeal and appeal. 2 Summonses for the production of various documents were served on the applicant by Mr Patrick Carroll, the respondent. There was no answer to the summons by Mr Shane Carroll and the question of the production of the documents sought was listed for hearing on 19 May. 3 On 12 May 2008, Mr Shane Carroll filed a notice of discontinuance of the proceedings. The discontinuance was opposed by Mr Patrick Carroll for reasons outlined at a mention of the proceedings and in correspondence. Mr Shane Carroll also outlined the reasons why he wished to discontinue, at the mention and in correspondence. In the circumstances here before us, it is unnecessary for us to outline the matters raised. Suffice it to say that the parties each raised serious allegations against the other. 4 The discontinuance is governed by the Court's Rules, which provide relevantly: 138 Discontinuance (1) A party may, before the beginning of the hearing of any proceedings, discontinue the proceedings so far as concerns the whole or any part of any application made by that party: (a) where the party or the party's solicitor certifies that the party does not represent any other person and all other parties having an address for service in the proceedings consent, or (b) with the leave of the tribunal. (2) Leave of the tribunal may be given in Chambers without the appearance of any person. 5 The dispute as to the production of documents was listed for hearing on 19 May and the application for stay, leave to appeal and appeal were listed for hearing on 5 June, even though Mr Shane Carroll had been offered an earlier date for the hearing of the stay. 6 In the circumstances, we take the view that Mr Shane Carroll does not strictly require the Court's leave to discontinue the proceedings, given the provision of Rule 138(1), the hearing of the matters brought before this Full Bench not having commenced. 7 Even though Mr Patrick Carroll advanced a number of forceful reasons for opposing the discontinuation of the proceedings, it is apparent that Mr Shane Carroll no longer wishes to resist the orders made against him in the proceedings below, for reasons which he has explained. It follows that even if leave was required, the public interest could not permit Mr Shane Carroll being compelled to pursue an appeal against a decision he no longer wishes to challenge. 8 It follows that the hearing of the matter listed for 5 June must be vacated. 9 With the discontinuation of these proceedings, there is no longer any question that the orders made in the proceedings below by the Chief Industrial Magistrate are effective and Mr Shane Carroll is obliged to obey them. 10 The final matter for us to consider is the question of the costs of these proceedings. The Rules relevantly provide: 215 Discontinuance