Malek -v- Ballace Pty Ltd t.as Divisional Security (No.2) [2006] NSWIRComm 1138

Industrial Relations Commission of New South Wales

CITATION: Malek -v- Ballace Pty Ltd t.as Divisional Security (No.2) [2006] NSWIRComm 1138

APPLICANT PARTIES: Michael Malek RESPONDENT Ballace Pty Ltd t/as Divisional Security

FILE NUMBER(S): 3998 of 2005

CORAM: Cambridge C

CATCHWORDS: Unfair dismissal - termination of employment - Costs - application for Costs dismissed.

LEGISLATION CITED: Industrial Relations Act 1996 [NSW]

HEARING DATES: 10/08/06

DATE OF JUDGMENT: 09/21/2006

EXTEMPORE JUDGMENT DATE : 08/10/2006

APPLICANT Self represented

LEGAL REPRESENTATIVES: RESPONDENT Ms F Hancock, barrister Solicitors McMahons National Lawyers

DECISION: - 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

COMMISSIONER CAMBRIDGE

21 September 2006

Matter No IRC 3998 of 2005

Michael Malek -v- Ballace Pty Ltd trading as Divisional Security

Application by Michael Malek pursuant to section 84 of the Industrial Relations Act 1996 re unfair dismissal.

DECISION ON COSTS

[2006] NSWIRComm1138

1 This Decision is issued further to the extempore Determination on Costs made in this matter during proceeding held on 10 August 2006. 2 The primary Determination of this matter involving a claim made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act), was made on 8 March 2006. In brief, the applicant was successful in establishing that he had been unfairly dismissed and the Commission made Orders for payment of compensation to the applicant, Michael Malek. 3 After the Commission issued the Decision and Orders in favour of the applicant, the applicant's then representatives, J F Law and Associates, requested that the Commission further determine the issue of Costs. 4 The Commission subsequently facilitated the process for Hearing and Determination of the issue of Costs culminating in the matter being fixed for a Hearing in respect of Costs on 10 August 2006. 5 It has emerged that in the intervening period the applicant had firstly, withdrawn instructions for J F Law and Associates to represent him in regard to the pursuit of Costs, secondly, the applicant subsequently withdrew instructions from solicitors who had apparently also been engaged to represent him, namely Marsdens Law Group. 6 At the proceedings involving the Hearing regarding Costs held on 10 August 2006, Mr C McElroy, solicitor from Marsdens Law Group, sought and was granted leave to withdraw his appearance in the matter. Subsequently the applicant continued unrepresented in the Hearing. 7 The respondent, Ballace Pty Ltd trading as Divisional Security was represented by Ms F Hancock, barrister. Ms Hancock opposed the application for Costs as advanced by the applicant. 8 Having heard from the applicant in respect of the question of Costs, the Commission expressed some serious concern about the state of the proceedings and advised that the Commission had formed a view that there should be no further inconvenience or costs associated with the matter. Therefore the Commission proceeded to issue an extempore Determination dismissing the applicant's claim for Costs. 9 Consequently the Commission hereby confirms the extempore Determination made in this matter during proceedings held on 10 August 2006. 10 The applicant's claim for Costs has been dismissed as the applicant has not established the necessary Legislative prerequisites as identified in section 181(2)(c) of the Act. In particular, the applicant has not established that the respondent had unreasonably failed to agree to a settlement of the claim. The Costs application is accordingly dismissed and the proceedings are now concluded.