Diab v Diab Pty Ltd [2005] NSWIRComm 154 | Case summary

1 These proceedings are constituted by a summons for relief brought under s 106 of the Industrial Relations Act 1996 ("the Act") in which the applicant is Frank Diab, and the respondent is Diab Pty Ltd. The summons was issued on 11 December 2001 and the prosecution of the proceedings has been much delayed for reasons which, for present purposes, are unnecessary to consider. 2 The summons seeks relief with respect to "the contract of employment and all arrangements… between the applicant and the respondent". A finding of unfairness is sought together with findings in the alternative of avoidance or variation of the contracts and arrangements. The variation sought seems to be confined to "the contract of employment" and there is no mention of "all arrangements". One of the variations with respect to the "contract of employment" is the payment on termination of an amount in excess of one million dollars being "a value attributed to the applicant's shareholding in the respondent company". 3 The summons contains within Part B a summary of matters of fact and law which refers to a contract of employment made between the applicant and the respondent providing him with employment as a manager in the respondent company's then-business. There is a reference to the fact that the applicant had a shareholding in the respondent company but no details as to how that came about. 4 In addition to payment of the value of the applicant's shareholding there is also a claim for monetary compensation being monies payable on termination of employment and for "stress, humiliation, illness, pain, suffering and fear". 5 As is required by the rules of this court, the respondent filed a Reply document which dealt with the circumstances of the applicant's employment, the circumstances in which he became a shareholder in the respondent, and traversed the circumstances in which the applicant was said to have resigned his employment and to have agreed to the transfer of his shares. The applicant filed a Response document which joined issue with a number of factual assertions contained within the respondent's Reply. 6 The proceedings have been the subject of a mandatory conciliation, pursuant to s 109 of the Act, which was unsuccessful. Subsequently, the applicant has filed affidavits setting out his evidence in chief, and the respondent has filed affidavit material in reply, save for an outstanding expert's report. 7 By notice of motion filed on 6 April 2005 the Respondent has sought orders that the applicant file and serve further particulars of his summons. In essence, the particulars sought go to the identification of the "contracts and/or arrangements" referred to in the summons, the particular terms of those contracts and or arrangements which are said to be relevant to the applicant's claim under s 106, and "how it is claimed that the relevant contracts and/or arrangements fall within the definition of contract as set out in s 105 of the Act". The grounds and reasons in support of the notice of motion, and contained within it, are two-fold. They are: "1. The Respondent seeks further particulars for the purpose of completing an Application to the New South Wales Court of Appeal seeking prerogative orders. 2. The Applicant has, through its solicitors, refused to respond to the Respondent's written requests for particulars."

An affidavit filed in support of the notice of motion annexed correspondence between the respondent's solicitors. The first letter is dated 29 July 2004 in which the respondent's solicitors referred to the then-recent judgment of the New South Wales Court of Appeal in Solution 6 Holdings Limited v Industrial Relations Commission of New South Wales [2004] NSWCA 200. The letter stated that the solicitors had taken the view that several of the orders sought in these proceedings fell outside the jurisdiction of this court and requested particulars the nature of which I have previously summarised. I was informed during the course of the hearing of the notice of motion that no reply was received to that letter nor, indeed, to the subsequent letters to which I shall shortly refer. 8 By letter dated 16 December 2004 the respondent's solicitors again sought the same particulars and informed the applicant's solicitors that their client intended to file an application in the New South Wales Court of Appeal seeking prerogative orders. Particulars were again requested "in order to complete the application to the Court of Appeal". The orders were sought by reference to Rule 57 of the Industrial Relations Commission Rules 1996. The next letter is dated 2 February 2005. It referred to the previous letter of 16 December 2004 "and our subsequent telephone messages". The letter asserts that three telephone messages had been left with the applicant's solicitors but that none of these had been returned. The letter again requested particulars in order that an application might be made to the New South Wales Court of Appeal. The final letter was dated 29 March 2005 and again complained of the lack of a reply to previous correspondence and telephone messages. 9 I was informed during the hearing of the notice of motion that no reply to any communication from the respondent's solicitors had ever been received from the applicant's solicitors, and the hearing of the notice of motion was the first occasion on which the respondent's solicitors were informed that the applicant declined to provide the particulars sought. 10 Counsel for the applicant, who appeared to resist the notice of motion, was not in a position to assist the court as to why there had been a failure by the respondent's solicitors to communicate in any way with the applicant's solicitors. 11 In resisting the furnishing of particulars, counsel for the applicant submitted that the request was unnecessary. He claimed that this was because the contracts and arrangements had been set out in detail in the supporting evidence contained within the applicant's affidavit. Furthermore, he pointed to the stage that the proceedings had reached and the fact that the respondent had not raised any issue with respect to identification of the contract or arrangements other than for the purpose of maintaining an application to the New South Wales Court of Appeal. Certainly, the respondent had not sought any particulars in order to enable it to formulate a Reply document, and in order to enable it to file affidavit evidence in reply to that filed by the applicant. It was submitted that, therefore, the nature of the contracts and arrangements must have been sufficiently known to allow the respondent to appreciate and understand the case which it was required to meet. Accordingly, it was submitted that the reason which actuated the respondent was outside the proceedings before this Court and was limited to the proposed proceedings in the New South Wales Court of Appeal. 12 It is generally recognised that parties may not utilise interlocutory processes in one court solely for the purpose of proceedings instituted, or to be instituted, in another court. Accordingly, on a prima facie basis, the respondent's motion should be dismissed. An additional reason for dismissal is the fact that the particulars are not required by the respondent for the purpose of these proceedings for the reasons set out in paragraph 11 above. 13 However, the matter which concerns me in these proceedings may be somewhat different because the New South Wales Court of Appeal exercises a supervisory jurisdiction over this Court. The nature and extent of that jurisdiction, having regard to the provisions of s 179 of the Act were examined closely by the New South Wales Court of Appeal in Mitchforce v Industrial Relations Commission (2003) NSWCA 151. However, as that decision made clear, the discussion in that case proceeded on the basis that a determination had been made by this Court. 14 In Solution 6 the New South Wales Court of Appeal examined the supervisory jurisdiction of that Court with reference to proceedings in this Court where no decision had been made and therefore the privative provisions of s 179 of the Act did not apply, and Spigelman CJ concluded that the New South Wales Court of Appeal should issue prohibition for what his Honour described as "patent excess of jurisdiction". Further, Spigelman CJ made reference to the judgment of Gibbs CJ in the High Court of Australia matter of R v Ross-Jones; ex parte Green (1984) 156 CLR 185, who concluded that prohibition should issue "almost as of right", and that "a clear case of want or excess of jurisdiction has been made out". Handley JA, on reviewing relevant authorities, concluded that "it is the duty of this Court on a timely application, to restrain action by the Commission in excess of its jurisdiction before it has had an opportunity to make a decision" (paragraph [183]). 15 In Solution 6, the New South Wales Court of Appeal rejected a submission that it should not deal with the proceedings at a stage where the summons in this court had been issued, but that no affidavit evidence had been filed on behalf of the applicant. Spigelman CJ said that the summons, having complied with the provisions of Rule 18A of the Industrial Relations Commission Rules, was deemed to have contained within it a summary of the facts which form the basis of the application. That was sufficient to enable the respondent, as claimant in the proceedings before the New South Wales Court "to establish the factual foundation of the relief sought in this Court. The Opponents were given the opportunity, in accordance with this Court's usual practice, to place further facts before this Court and, indeed, did so" (see paragraph [50]). "If in the light of all of the evidence before this Court, primarily the Amended Summons itself, it appears that that part challenged here is beyond the Commission's jurisdiction, this Court may exercise its supervisory jurisdiction"(per Spigelman CJ at paragraph [51]). 16 The ultimate question which I have posed for myself in determining these interlocutory proceedings is whether I should accede to the respondent's request to make orders requiring the giving of these particulars, for the sole purpose of assisting the respondent with respect to the application which it wishes to make to the New South Wales Court of Appeal. On one basis, matters of comity might lead to a conclusion that this Court should assist in any process which would in turn facilitate the just, quick, and cheap resolution of proceedings before an appellate court exercising supervisory jurisdiction. On the other hand, as I have already determined, on a prima facie basis it would be inappropriate to order that the particulars be given for reasons earlier set out. In addition, it is possible that the New South Wales Court of Appeal might take a different view about whether particulars are required and the nature of those particulars, or whether some other approach is appropriate. To that extent, it might be thought that I would be trespassing into an area which, more appropriately, should be the domain of the New South Wales Court of Appeal. It is this latter view which has persuaded me, on balance, to decline to order the furnishing of particulars in circumstances where they are sought solely by reference to contemplated proceedings in the New South Wales Court of Appeal. 17 There is one other matter which has influenced the conclusion to which I have come. The New South Wales Court of Appeal has made it clear that this Court is empowered and has jurisdiction to determine its own jurisdiction; see, for example, Spigelman CJ in Solution 6 at paragraph [126]. On this basis it might be assumed that this Court would continue to be able to determine matters before it, even though particular proceedings may be concurrently before the New South Wales Court of Appeal seeking to invoke its supervisory jurisdiction. However, the New South Wales Court of Appeal has recently prohibited this Court, by order made on the 11 April 2005, from dealing with a notice of motion filed by an applicant seeking to amend proceedings brought under s 106 of the Act. It did so, not on the basis that there was some patent lack of jurisdiction in this Court to consider whether a summons should be amended, but because on the balance of convenience the prohibition would allow the Court of Appeal to exercise its supervisory powers to review a jurisdictional issue "untrammelled by the impact of s179" (of the Act) (per Tobias JA in BEA Systems v Industrial Relations Commission of New South Wales and anor (A40225/05)).The prohibition precludes this Court from exercising its power and jurisdiction to deal with an application to amend proceedings. It may well be that this decision signals a desire by the New South Wales Court of Appeal to assume a greater role in the examination of the jurisdiction and power of this Court in dealing with interlocutory proceedings before it, particularly those brought under s 106 of the Act. This is, in my opinion, a militating factor in declining to act in these proceedings in the manner sought by the respondent. 18 Before dealing conclusively with these proceedings, I should refer to the apparent conduct of the applicant's solicitors in failing to respond to any communication received from the respondent's solicitors over a considerable period of time. Arguably, such behaviour constitutes, at the least, professional discourtesy; and it may arguably constitute professional misconduct. I take the view that this Court cannot be seen to turn a blind eye to, or condone in any way, behaviour of a legal practitioner which might ultimately be found to have substantially failed to comply with established standards of the profession. In normal circumstances I would propose to give the applicant's solicitors an opportunity to put before the Court such material as they thought fit by way of explanation of the circumstances which I have previously set out. Depending upon the nature of the material and the nature of any explanation proffered, the proceedings would then be re-listed by the Court of its own motion for the purpose of determining whether and what action might appropriately be taken thereafter with respect to this aspect of the matter. However, because the matter of particulars may arguably be a matter for the Court of Appeal, I shall defer considering taking such a step until such time as the proceedings are resolved in the Court of Appeal. 19 Notwithstanding the threat by the respondent to institute proceedings in the New South Wales Court of Appeal, and because there can be no guarantee that such proceedings will be instituted, or, indeed, be successful, the applicant should not be denied the opportunity of continuing to prosecute the proceedings in this Court so as to facilitate their just, quick and cheap resolution. For this purpose I fix the 17 June next at 9:30am as a further directions hearing. 20 For the reasons previously given, the motion is dismissed. The respondent is to pay the applicant's costs of the motion in an amount assessed under the Legal Profession Act in default of agreement.

Diab v Diab Pty Ltd

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Cases Cited (2)