59 A useful and fulsome summary of the general principals applicable in this regard is to be found in Nisbet v Kilfoyle t/as Kilfoyle Earthmoving (unreported, Full Bench, Cahill VP, Bauer, Marks JJ, CT1120/96, 18 December 1996). There a Full Bench of the Commission in Court Session said:
It was accepted by Mr Reiss who appeared for the appellant and Mr C Fisher who appeared for the respondent that the Industrial Court of New South Wales, as a superior court of record, had an inherent implied power to control its processes and an obligation to ensure the proceedings before it were conducted fairly.
The Industrial Court of New South Wales was established under s 288 of the 1991 Act as a superior court of record. As it was created by statute it thus fell within the description of a superior court of limited jurisdiction. The nature of such a court and its jurisdiction is discussed in the Supreme Court of New South Wales, Court of Appeal in Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 . Some general observations about the inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process were made in the High Court of Australia in Walton v Gardiner (1992 -3) 177 CLR 378. Mason CJ, Deane and Dawson JJ said (at 392-393):
"The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. (cf Metropolitan Bank v Pooley (1885) 10 App. Cas. 210 at pp 220-221; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at pp128-130). Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. (cf Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538). Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of in earlier proceedings. (cf Reichel v Magrath (1889) 14 App. Cas. 665 at p 668; Connelly v Director of Public Prosecutions (1964) AC 1254 at p 1361-1362). The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at p 536, as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would other wise bring the administration of justice into disrepute among right-thinking people.'".
Their Honours then went on to discuss the decision of the High Court of Australia in Jago v District Court (NSW) (1989) 168 CLR 23, to which they had previously referred. They said: (at 393-395) "In Jago v District Court (NSW) (1989) CLR 23, at least three of the five members of the Court clearly rejected 'the narrower view' that a court's power to protect itself from an abuse of process in criminal proceedings 'is limited to traditional notions of abuse of process". (cf ibid., at p28, per Mason CJ). Mason CJ considered that a court, 'whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves', possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness. His Honour quoted, with approval, the following remarks of Richardson J of the New Zealand Court of Appeal in Moevao v Department of Labour (1980) 1 NZLR 464 at p 481:
"public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice."
Deane J expressed a similar view in his judgment in Jago (at p58):
'The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.'
In her judgment in Jago (ibid. at p 74), Gaudron J stressed that the power of a court "to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands." Her Honour added the comment "that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand". Subsequently in her judgment (at p75), her Honour made clear that, subject to some refinements which she identified, that comment was also appropriate to be adopted in relation to criminal proceedings."
We have previously referred to Entertainment Distributors. In those proceedings the Commission was concerned with an application brought by a trade union on behalf of a member against the member's employer under s 246 of the 1991 Act. During an early stage of the proceedings at first instance counsel for the union informed the Commissioner who was hearing the matter that there was a possibility that prosecution proceedings would be brought against the same respondent under s 481 of the 1991 Act. The respondent sought inter alia a stay of the s 246 proceedings until the outcome of the projected prosecution under s 481 was known. The Commissioner refused to grant a stay and this decision was reversed on appeal. The Full Commission said in the course of its judgment:
"We think that it was inevitable that EDC could well suffer prejudice in properly defending the proceedings under s 246 because of the pending prosecution proceedings. Alternatively, it could well suffer prejudice in the conduct of its case in any subsequent prosecution proceedings. Furthermore, the Court may, under s 481 (7), order the reinstatement of an employee who has been victimised if the Court convicts an employer of an offence under s 481. It was and is also open to make application for an order for reinstatement and/or other remedies under s 482 where there has been a contravention of s 481. In our opinion, the considerations of prejudice to the employer in the conduct of its case under Pt 8 of Ch 3 and/or under s 481, and the availability of the remedy of reinstatement under s 481 and of that remedy and others in concurrent s 482 proceedings, outweigh on balance the consideration of the interests of the employees and the actions of the employer seen by the Commissioner to have caused delays in the hearing of the applications.
It follows in our opinion that the refusal of the application for adjournment and the decision to proceed to hear and determine the merits of the matter were in error and resulted in the proceedings before the Commissioner miscarrying." (at 456-7).
In the circumstances of those proceedings the Full Commission was prepared to order a stay of the s 246 application to avoid undue prejudice being suffered by the respondent in defence of a prosecution under s 481 which is in the nature of a criminal prosecution.
It is obvious that whether or not any particular proceedings can be characterised, as amounting to an abuse of process as to call for the intervention of the tribunal will depend upon all of the particular circumstances of those proceedings. The nature of the relief that will be granted will likewise depend upon those particular circumstances.