Heath v Hanning (No.2) [1999] NSWSC 771

New South Wales Supreme Court CITATION : Heath v Hanning (No.2) [1999] NSWSC 771 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 1806/99 HEARING DATE(S) : 10 May 1999 JUDGMENT DATE : 26 July 1999

Heath Group Australasia Pty Limited (P) PARTIES : v Leonard Henry Hanning (D) JUDGMENT OF : Austin J

COUNSEL : A Lo Surdo (P) S Crawshaw SC (D) SOLICITORS : Coudert Brothers (P) R L Whyburn & Associates (D) CATCHWORDS : Courts- jurisdiction - cross-vesting of jurisdiction - application for removal of proceedings before Industrial Relations Commission to Supreme Court - whether conciliation should occur before removal ACTS CITED : Industrial Relations Act 1996 (NSW), s 109 CASES CITED : Minproc Ltd v Killinger [1999] NSWSC 564 DECISION : Orders for removal stayed

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

AUSTIN J

MONDAY 26 JULY 1999

1806/99 - HEATH GROUP AUSTRALASIA PTY LIMITED v LEONARD HENRY HANNING

JUDGMENT (Delivered ex tempore on 26 July 1999; revised 27 July 1999)

1 HIS HONOUR: In this proceeding I handed down reasons for judgment on 19 July 1999 concluding that I should make orders to remove two proceedings in the Industrial Relations Commission of New South Wales to this Court, together with a proceeding before the Chief Industrial Magistrate. The plaintiffs intend to make an application to the Federal Court for transfer of two proceedings from that Court to this Court. 2 The parties returned to the Court today for the making of orders and to deal with two issues which remain in contention. The first relates to the conciliation procedure which is required under s 109 of the Industrial Relations Act 1996 (NSW). As counsel for the defendants pointed out, that procedure is not a discretionary matter. If the Commission proceedings are removed to this Court before conciliation has occurred, the statutory duty which s 109 impresses on the Commission will have to be discharged by this Court in some way. It seems to me that since the Commission has in place established procedures for conciliation and this Court's procedures, though they allow for mediation and similar matters, do not specifically make provision for conciliation, it would be preferable for conciliation to occur while the two proceedings are still in the Commission and before their removal to this Court. 3 However, that consideration could be outweighed if it emerged that conciliation in the Commission would produce such undue delay that the present plaintiffs would be thereby prejudiced. There is no evidence before me as to the amount of delay (if any) to which conciliation in the Commission would lead. I propose to grant liberty to apply and if the present plaintiffs wish to use that liberty to make an application in which they would provide evidence of delay and prejudice, then they may do so. 4 For the time being, it seems to me, the appropriate course is, as I foreshadowed in my reasons for judgment of 19 July 1999, to make an order staying the orders for removal of the Commission proceedings to this Court until the conciliation procedure contemplated by s 109 is attended to. I note that this was the approach taken by Young J in Minproc Ltd v Killinger [1999] NSWSC 564. I do not regard the decision as distinguishable by virtue of the fact that the Commission had there made an order for conciliation, since it seems to me the substance of the issue is whether the Commission or the Court is, as a matter of this Court's discretion, the better equipped to deal with conciliation. 5 The second issue in contention relates to costs. The substantive relief sought in the summons was dealt with in my reasons for judgment, and the orders which follow today will give effect to those reasons, subject to the stay of the removal orders to which I have referred. It is true that the plaintiffs have yet to complete their application to the Federal Court for transfer of the proceedings in that court, and so the process of transferring all relevant proceedings to this Court has not yet been completed. It is also true that the plaintiffs would have had to make an application to this Court even if there were no opposition, in order to secure removal of the Commission proceedings. Nevertheless, the plaintiffs have succeeded in a contested application and their success was on all substantive points argued, except on the question of stay of the removal orders. Therefore, costs up to but not including today's hearing should follow the event. 6 In terms of the short minutes of order which I initial and date for the purposes of identification, I make orders 1 - 3. In order 4 I make the order with the additional words 'within the present proceedings'. I make orders 5, 7 and 8 with the exception that in order 8 the plaintiffs are entitled to costs only up to 23 July 1999 since the defendants had some success with respect to the stay of proceedings today. I do not make order 6 which I regard as premature at this stage. I order that orders 1 and 2 be stayed until the conciliation required by s 109 of the Industrial Relations Act 1996 has occurred, or until further order. I intend that the existing liberty to apply may be used to make an application in relation to that matter. * * * * * * * * * *