Industrial Court of New South Wales CITATION: Azar v James Ritchie & Anor [2006] NSWIRComm 293 NAYLA AZAR Appellant PARTIES: DR JAMES RITCHIE First Respondent JD RITCHIE PTY LTD Second Respondent FILE NUMBER(S): IRC 2639 of 2006 CORAM: Walton J Vice-President; Schmidt J; Staff J CATCHWORDS: Appeal - leave to appeal and appeal from a decision by Chief Industrial Magistrate - application for the recovery of money - unrepresented litigant - deed of release - leave to appeal refused - appeal dismissed - costs LEGISLATION CITED: Industrial Relations Act 1996 Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 Azar v Ritchie [2005] NSWIRComm 1124 Box Valley Pty Ltd v Price (2000) 97 IR 484 CASES CITED: Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 David Jones v Cukeric (1997) 78 IR 430 De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 Strathfield Group Ltd v Hall (2002) 121 IR 158 HEARING DATES: 07/09/2006 DATE OF JUDGMENT: 09/14/2006 APPELLANT: Ms Nayla Azar (in person) LEGAL REPRESENTATIVES: RESPONDENTS: Mr T Unsworth, solicitor SOLICITORS: TressCox JUDGMENT: INDUSTRIAL RELATIONS COURT OF NEW SOUTH WALES CORAM: Walton J, Vice-President Schmidt J Staff J 14 September 2006 Matter No IRC 2639 of 2006 NAYLA AZAR V JAMES RITCHIE AND ANOTHER Application by Nayla Azar for leave to appeal and appeal against a decision of Chief Industrial Magistrate Hart on 28.6.2006 in matter no. CIM 106663/06 JUDGMENT OF THE COURT [2006] NSWIRComm 293 1 Nayla Azar seeks leave to appeal and appeals from a decision given by Chief Industrial Magistrate Hart, on 28 June 2006, dismissing Ms Azar's application for the recovery of money and ordering her to pay the respondents' costs, as agreed or assessed. Ms Azar sought a stay of that order. At the hearing of the stay application before Haylen J on 12 July 2006, the respondents undertook not to pursue the costs order, pending the hearing of this appeal. 2 While Ms Azar's notice of appeal refers to ss 191 and 187/188 of the Industrial Relations Act 1996 ('the Act'), it is s 197 of the Act which provides for an appeal to this Court, from decisions of the Local Court. We have dealt with the appeal on that basis. 3 Ms Azar's application below was brought under s 379 of the Act. She sought recovery of wages she claimed were due to her from the respondents, by whom she had formerly been employed, as well as unpaid overtime, annual leave entitlements, bonuses, superannuation and interest. In the notice of appeal, Ms Azar quantified the claim made below as amounting to $24,690.12. Before the Chief Industrial Magistrate, the respondents relied upon a deed of release executed by the parties in other proceedings before the Commission. They were appeal proceedings in which Ms Azar was appealing a decision made by Commissioner Patterson (Azar v Ritchie [2005] NSWIRComm 1124), refusing the application Ms Azar had brought under s 84 of the Act seeking reinstatement in her former employment. The Commissioner had also made a costs order against Ms Azar, which was also challenged on appeal, the respondents having advised Ms Azar that their costs of the reinstatement proceedings were in excess of $52,000. 4 The parties reached an agreement in relation to the appeal, which was reflected in consent orders which were made by the Commission on 18 November 2005. Those orders were: 1 The Costs order made by Commissioner Patterson on 4 October is set aside. 2 Otherwise, the Application for Leave to Appeal and Appeal filed on 16 August 2005 by the Applicant is dismissed. 5 The orders were made in circumstances where the parties had reported to the Full Bench that they had also executed a deed of release, the terms of which had been the subject of a conciliation process, before Deputy President Grayson. The deed was tendered before the Full Bench and the transcript of the proceedings confirms Ms Azar's acceptance of it. That conciliation was provided by the Commission at the request of the parties, as the scheme of the Act contemplates - see ss 86, 87, 162 and 163. The conciliation resulted from concerns expressed by Ms Azar before the Full Bench about providing a release which would preclude her from pursuing various other claims against the respondents. The terms of the originally proposed deed, which had been objected to by Ms Azar, were adjusted in the light of this process. 6 The introduction to the deed of release which the parties entered, noted that the parties 'agreed to settle, except for two particular matters, all claims they may have between them.' The deed provided that the respondents would not pursue the costs order made in their favour by Commissioner Patterson (at paragraph 1). Relevantly, the deed otherwise provided: 4 The parties release each other from any claims arising out of or in any way connected with Ms Azar's employment, the termination of that employment or their personal relationship, except for those that might be protected by Workers Compensation law. 4A Ms Azar is not precluded, by this agreement, from continuing her complaint made to the Health Care Complaints Commission and/or the NSW Medical Board and/or the Medical Tribunal referred to in the attached correspondence from the HCCC and correspondence from the NSW Medical Board. 5 The parties acknowledge that either party may plead this deed as a complete defence to any action brought against any party to this deed against any other party to this deed relating in any way to Ms Azar's employment, the termination of that employment or their personal relationship. 7 In the proceedings below, Ms Azar's application was dismissed and an order for costs made against her, the Chief Industrial Magistrate taking the view that the terms of the deed bound the parties and that it provided a complete defence to the claims which Ms Azar sought to press in those proceedings. His Honour held: HIS HONOUR: No. Well, I have heard the submissions made by the applicant in person and I've heard the submissions made in response by Mr Unsworth appearing for the respondents. The situation here is that the applicant seeks to pursue claims against the respondents in relation to the terms and conditions of her employment, where she alleges that there has been an underpayment in a number of respects by the respondents. The respondents have not put on any materials by way of evidence but instead rely upon a deed of release that is annexed to an affidavit of the solicitor for the respondents, Mr Unsworth, being a deed of release dated 18 November 2005. I have had a close look at the deed of release and I am satisfied that the terms of the deed are clear, in that the original clause 4 and thee additional handwritten clause 4A make it clear that the parties, in the proceedings before the Industrial Relations Commission, entered into an agreement whereby the parties released each other from all further claims arising out of or in any way connected with the applicant's employment, the termination of that employment or the personal relationship between the parties. There were some specific exclusions to that, one being that the deed itself made it clear that the applicant's rights under the workers compensation legislation were preserved. Further, the new clause 4A, which was handwritten, makes it clear that the applicant is not precluded by the deed from pursuing various complaints open to her before the Health Care Complaints Commission, the New South Wales Medical Board, the Medical Tribunal and matters of that nature. However, there is no provision in the deed which would give the applicant the right to come to the Chief Industrial Magistrate's Court to pursue claims relating to alleged underpayment of wages or other terms and conditions of her employment. I am satisfied that the terms of the deed itself act as a bar to any proceedings in this jurisdiction in relation to those matters. The applicant seeks to raise allegations concerning the circumstances in which this deed of release was executed. The applicant claims that there was some impropriety, that she was not shown the entirety of the document but was simply given the page requiring signatures, that she was denied an opportunity to read the document, to get legal advice and was therefore inappropriately pressured into executing the deed of release. I'm not satisfied that I have jurisdiction to consider those allegations because they really amount to a claim that the deed of release should be set aside, having been improperly procured. It appears to me that the applicant would need to approach the Equity Division of the Supreme Court, or possibly the District Court, to seek some sort of relief, if she's able to make out the serious allegations that she makes. I am satisfied that there is no evidence before me which would justify me making any comment in relation to the claims that she makes. They are matters that could be pursued elsewhere if the applicant so wishes, but they're not matters that I can resolve. ON THE BASIS OF THE DEED OF RELEASE WHICH IS BEFORE ME, I FIND THAT THE MATTER CANNOT PROCEED AS I DO NOT HAVE JURISDICTION TO DEAL WITH IT, GIVEN THAT THE DEED OF RELEASE ACTS AS A COMPLETE BAR TO THE APPLICANT PURSUING THIS MATTER. I ORDER THE MATTER TO BE DISMISSED. 8 The claims advanced by Ms Azar on appeal included, amongst other matters, that at the time of entering the deed she was ill and therefore unfit to sign the deed, 'without assistance of the court or a legal practitioner'. She was 'induced to sign the deed under pressure without reading the deed or receiving legal advice or assistance by the judge. This should is (sic) illegal to induce such and render the deed void.' These were matters which the Chief Industrial Magistrate ought to have taken into account, but failed to do. There were also various complaints advanced as to the circumstances in which the deed came to be executed and a claim that Ms Azar should not be held to the terms of the deed, which precluded her wages' claim being advanced. Ms Azar also argued that the fact that she was unrepresented when she entered the deed, was also a relevant consideration. 9 Ms Azar argued that she had been denied a hearing on the merits of her claims, to which she was entitled. The Chief Industrial Magistrate had erred in receiving the deed in evidence and had denied Ms Azar an adequate timeframe in which to respond to the deed. 10 The case advanced for the respondents was that leave to appeal would not be granted in this case. The matters advanced by Ms Azar raised no issue of principle and did not satisfy the public interest test. The Chief Industrial Magistrate took the view that the parties were bound by the deed and that if Ms Azar wished to have it set aside, she was obliged to take the appropriate steps elsewhere. The deed could not be set aside by the Chief Industrial Magistrate, nor in these appeal proceedings. No error of fact or law could be demonstrated in the judgment below. 11 Ms Azar filed a response to the respondents' written submissions, in the form of a notice of motion, supported by an affidavit which she had sworn. Ms Azar claimed that the respondents should be 'struck out from the proceedings', it being alleged that the respondents had failed to comply with directions as to the filing of their submissions, having regard to their content, because she had received no proper reply to the appeal which she sought to advance. 12 We observe at this point that we refused the strike out application at the hearing, having regard to the nature of the material each party had filed in the form of appeal books; the submissions which were filed on 24 August by the respondents; the terms of the reply and notice of motion filed by the appellant on 31 August and no adverse repercussions arising for the hearing of the appeal. We were satisfied that in all of the circumstances before us, justice required that we hear the cases which each party sought to advance. 13 Nor did we receive the affidavit supporting the notice of motion as fresh evidence in the appeal. Ms Azar explained that, in part, the affidavit sought to reply to the respondents' submissions. Some of the material annexed to the affidavit was already before us in the appeal books filed. Otherwise, the affidavit sought to introduce material not advanced before the Chief Industrial Magistrate, as to why Ms Azar should not be bound by the deed. We refused to receive that latter material as fresh evidence under s 191(2) of the Act. The admission of that evidence would be to permit an attack on the deed as part of this appeal so as to effectively exclude its operation in relation to the first instance proceedings; these proceedings and perhaps others (or de facto to have it set aside.) For the reasons which follow as to leave to appeal, we did not consider that this would be a proper basis for the grant of such leave. 14 Nevertheless, in so far as Ms Azar relied on her affidavit as a submission in reply to the respondents' submissions, we permitted her to do so and have taken those submissions and the various other written submissions which she advanced, into account in coming to the conclusions we have reached. Consideration 15 It is well settled that leave to appeal will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. An appeal bench is ultimately concerned with correction of error. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 and Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45].) 16 It is also well settled that 'some issue of real significance in the interests of justice will need to be identified for such an application to succeed.' (See Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 at [4].) If an appeal seeks, by and large, merely to challenge findings of fact or the exercise of a discretion, it will face a significant hurdle in obtaining leave. (See Box Valley Pty Ltd v Price (2000) 97 IR 484 [4].) 17 The complaint pressed by Ms Azar in this case was that the respondents relied upon the deed which the parties entered on 18 November; that the deed was received in evidence below; and that the Chief Industrial Magistrate did not set it aside, but had regard to its effect in refusing the application, rather than determining the claims Ms Azar sought to advance in the proceedings on their merits. 18 The respondents argued that such a case can not meet the public interest test imposed by s 188 of the Act. That section provides: (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. 19 Given the limitations imposed by the section, the difficulty in leave to appeal being granted to Ms Azar in this case, becomes plain. The deed on which the respondents relied below was received in evidence, the Chief Industrial Magistrate taking the view undoubtedly open to him, that it was relevant to the matters he was called upon to decide in the proceedings. 20 The settlement that the parties had reached in their deed was instrumental in the Full Bench making the consent orders in the earlier appeal proceedings, which we set out above. The parties were bound by the deed and benefited from its terms. The respondents agreed not to pursue the costs order made against Ms Azar by Commissioner Patterson, having quantified the costs in those proceedings as exceeding $52,000. Ms Azar agreed not to pursue other claims arising out of the employment relationship, apart from those claims expressly identified in the deed. In these proceedings, Ms Azar quantified the claims advanced below as amounting to some $24,690.12. 21 When the matter came before the Chief Industrial Magistrate, Ms Azar had not taken any steps to seek to have the deed set aside. By its express terms, Ms Azar was precluded from bringing those proceedings and the respondents were entitled to rely on the deed to resist the claim brought. The terms of the deed were given effect. On the material before him, his Honour did not err in adopting that course. As has been often been observed, there is a significant public interest in parties honouring their agreements, particularly those made in settlement of litigation. (See for example the observations of the Full Bench in David Jones v Cukeric (1997) 78 IR 430 at 457.) It was not open to his Honour in the proceedings before him, to set aside the deed on which the respondents relied, or to ignore its terms. The deed was given effect by his Honour and the proceedings were dismissed, without a hearing on the merits. That result accorded with the agreement which the parties had earlier reached, as the deed recorded. 22 That being so, it follows that no error has been demonstrated and that the requirements imposed upon the Full Bench by s 188 of the Act have not been satisfied. The matters raised on appeal by Ms Azar are clearly not 'of such importance that, in the public interest, leave should be granted.' Nor does the appeal raise issues in the interest of justice, as would warrant the grant of leave to appeal. 23 We finally observe that Ms Azar was unrepresented in these proceedings, as she was in the proceedings below and in the earlier appeal proceedings, although it appears that she took legal advice before commencing the proceedings before the Chief Industrial Magistrate. She advanced submissions both before the Chief Industrial Magistrate and on appeal, as to how that position put her at disadvantage, in agreeing to the deed which she had entered. She also asserted that she was not well enough to have participated in the earlier appeal proceedings and to have entered into the deed. 24 We note that the question of Ms Azar's health was not a matter raised by her in the earlier appeal proceedings before the Full Bench. The state of Ms Azar's health at the time she entered the deed, is not a matter appropriate for us to deal with, given the nature of these appeal proceedings. That Ms Azar is not legally qualified was a matter upon which she relied and which we have taken into account. That circumstance is not, however, such as can lead to the conclusion that leave to appeal may be granted in this case, consistently with the requirements of s 188 of the Act. Orders 25 For those reasons, we refuse leave to appeal, dismiss the appeal and order Ms Azar to pay the respondents' costs, as agreed or assessed. ------------------------ 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.