Zografakis and Broadlex Cleaning Australia Pty Limited [2003] NSWIRComm 286

AWARDS: Cleaning and Building Services Contractors (State) Consolidated Award 325 IG 287 HEARING DATES: 08/26/2003 DATE OF JUDGMENT: 09/09/2003

APPLICANT: Mr A Searle of counsel instructed by Kingsford Legal Centre LEGAL REPRESENTATIVES: RESPONDENT: Mr P Rochfort (Agent)

JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 9 September 2003 Matter No IRC03/2391 Gestimani Zografakis and Broadlex Cleaning Australia Pty Ltd Report of the (Acting) Deputy Industrial Registrar pursuant to section 11(3) of the Employment Protection Act 1982 DECISION ON NOTICE OF MOTION [2003] NSWIRComm 286

1 The originating application in this matter arose from a report, pursuant to s11(3) of the Employment Protection Act 1982, by the (Acting) Deputy Industrial Registrar, dated 5 May 2003. Section 11(3) of the Employment Protection Act is expressed as follows: The Registrar may, of his or her own motion, furnish the President with a report where the Registrar is of the opinion that an employer has or may have contravened or failed to comply with this Act in any respect or that a notice under section 8 contains or may contain inadequate, false or misleading particulars. I shall refer to other relevant sections of this Act later.

2 The (Acting) Deputy Industrial Registrar's report to the President attached what was essentially a claim for redundancy pay (presumably under s14 of the Employment Protection Act) by Mrs Gestimani Zografakis ('the applicant') following her dismissal by Broadlex Cleaning Australia Ltd ('the respondent'). The applicant had been employed for six years as a full time employee - for the first five years she was employed as a cleaner and for the last year of her employment she was employed as a housekeeper at the Qantas Club Lounge at Sydney International Airport.

3 On 24 August 2001 the applicant was informed that the respondent had lost the contract at the Qantas Club Lounge and that as a result her employment would be terminated on 14 October 2001. About 50 employees lost their jobs. The respondent retained the contract for other cleaning work at the airport and it has other cleaning contracts in, and around the Sydney Metropolitan Area. The applicant was invited to make contact with the new contractor, Prestige Property Services.

4 The applicant was employed under the Cleaning and Building Services Contractors (State) Consolidated Award 325 IG 287. It is to be observed that the award makes no provision for redundancy or severance pay; although I note the award provides for 3 months notice in the event an employee with 12 months service is terminated due to the introduction of mechanisation or technological change.

5 Proceedings in this matter commenced on 22 May 2003, about 18 months after the applicant's termination of employment. Mr A Searle of Counsel appeared for the applicant and Mr P Rochfort (Agent) with Mr T Earls appeared for the respondent. After preliminary submissions, the Commission chaired private conferences with the parties, pursuant to s13 of the Employment Protection Act. As a result of these conferences the respondent offered the applicant re-employment. The matter was adjourned to allow the applicant time to consider the offer. The Commission was informed on 30 June 2003 that, for various reasons, the offer was not acceptable to the applicant. The matter was subsequently programmed for hearing and directions issued for the filing of evidence. A further offer of re-employment was made during proceedings on 3 July 2003. However, that offer also was not accepted.

6 On 18 August 2003, the respondent filed a notice of motion seeking to have this matter dismissed with costs on the grounds of an abuse of process - a position it had maintained since the initial proceedings on 22 May 2003. The notice of motion was heard on 26 August 2003. For convenience, I shall continue to refer to the applicant on the notice of motion as the respondent.

7 This application was preceded by two other applications filed by the applicant in respect to her termination of employment; firstly, an application under s84 of the Industrial Relations Act 1996 ('the Act') (Matter IRC01/7157) and secondly, an application before the Industrial Magistrate for the recovery of severance payments under the Employment Protection Act pursuant to s365 and/or 366 of the Act (CIM 156525/02).

8 The background to both those matters was largely undisputed. It is necessary, having regard to the motion presently before the Commission, that I refer in some detail to the earlier proceedings before both the Commission and the Industrial Magistrate.

9 Conciliation proceedings for the s84 application commenced before O'Neill C on 20 December 2001. The applicant was unrepresented, but she advised the Commissioner that she had sought advice from Ms Rosilyane Bartley of the Kingsford Legal Centre. During these proceedings alternative employment was offered to the applicant and the matter was adjourned until 8 March 2002 to allow her time to consider her position and take further advice.

10 On the next occasion, Ms Bartley appeared for the applicant. Terms of settlement were signed by the parties - although there was some confusion whether the document was signed on 8 March or 1 May. In any event, the terms of settlement were expressed as follows: In accordance with section 84 of the Industrial Relations Act 1996, the parties have conferred on the (date) 8 March 2002 and have settled the matter by consent:

1. The respondent Broadlex Cleaning Services Pty Ltd has agreed as set out in clause 5 and 6 hereof.

3. The terms of settlement are to remain confidential to the parties and to the Commission

4. In the event of any non performance of the offer referred to clauses 5 and 6 hereof, or any dissatisfaction with the outcome, the parties are at liberty to seek a relisting of the matter before Commissioner O'Neill . 5) To offer the applicant a position as a cleaner with the Company providing for a four hour work day, five days per week, with the work to be fully described to the applicant prior to her commencement.

6. subject to the applicant performing her duties satisfactorily, at such time as a position becomes available within a Qantas Facility such position will be offered in the first instance to the applicant.

7. The position referred to shall be offered once only.

These terms of settlement constitute a conclusion of this matter subject to the terms of settlement being fully executed.

11 I note that on 22 March 2002, the applicant's representative sought a re-allocation of the s84 application pursuant to s173 of the Act.

12 On 1 May 2002, O'Neill C issued a short decision in the following terms: The application was filed on 2 November 2000 (2001), and came before the Commission on the 20th of the 12th for original preliminary hearing. Terms of settlement have now been reached between the parties in respect to this matter, those terms of settlement being finalised this day. Accordingly, the Commission will conclude this matter on the basis that if any difficulties arise with the terms of settlement, the matter can be relisted.

13 On 7 May 2002 the offer of re-employment was confirmed in writing. It stated as follows: I confirm the offer made by telephone to you by Nick Sarris, to the effect that you are offered a position with Broadlex, working four (4) hours per day, five (5) days per week at the Qantas Jet Base, Mascot. Your hours of work are 1900 to 2300 hours. Should you accept this offer, you should attend ready to commence work at, or immediately prior to, 1900 hours on Monday 13 May, 2002. If you have any queries regarding the job, including the specific requirements of the position, please discuss such issues directly with Nick. Please ensure the Company is provided with up-to-date personal Taxation details.

14 The applicant's representative replied in the following terms on 14 May 2002: We refer to your letter to our client dated 7 May 2002 and copied to us under your cover letter dated 7 May 2002. We are instructed that due to illness our client is not in a position to accept your offer. We will accordingly file a Notice of Discontinuance regarding the Unfair Dismissal application in the Industrial Relations Commission.

15 On 28 June 2002 the applicant instituted proceedings in the Industrial Magistrates' Court seeking severance pay under the Employment Protection Act. At the respondent's request, O'Neill C convened a further conciliation conference on 21 August 2002. The Commissioner declined to take any further action and noted that separate proceedings had been commenced before the Industrial Magistrate.

16 On 30 August 2002 the respondent filed a notice of motion in CIM 156525/02 seeking to have the matter struck out as an abuse of process. The notice of motion was dismissed by his Worship Magistrate Reiss. The applicant asserted that his Worship had ruled that the terms of settlement before O'Neill C were related to the unfair dismissal matter only and that the applicant was not barred from making a claim for severance pay. The matter was re-listed before Chief Industrial Magistrate Miller on 28 October 2002.

17 However, the applicant decided to discontinue the proceedings primarily because of a jurisdictional difficulty with such a claim being pursued before the Industrial Magistrate. The respondent accepted the discontinuance and did not seek costs. The discontinuance was duly signed and forwarded to the Chief Industrial Magistrate on 20 November 2002.

18 On 22 April 2003 Kingsford Legal Centre, on behalf of the applicant, wrote to the Industrial Registrar seeking a report be prepared pursuant to s11(3) of the Employment Protection Act.

19 Affidavit and oral evidence was provided on behalf of the applicant by her legal advisor, Ms Joanne Moffit (Solicitor) and for the respondent by Mr Tom Earls. Much of the affidavit evidence dealt with the factual background to which I have earlier referred.

20 The main focus of the disputed evidence concerned the detail of conversations between Mr Rochfort, agent for the respondent and Ms Rosilynne Bartley, Ms Susan Tan, Ms Joanne Moffit and Ms Anelli Manolas (all from Kingsford Legal Centre). I note that, except for Ms Moffit, the other named persons did not provide evidence in the proceedings. In respect to Ms Bartley's conversations with Mr Rochfort, Ms Moffit recounted what Ms Bartley had told her and included Ms Bartley's file notes to corroborate the conversations.

21 To the extent that there was disagreement about what was said in the disputed conversations, I have not found these conversations to be materially relevant to my determination of this notice of motion. A few observations, however may be made.

22 Firstly, Ms Bartley had apparently briefed Counsel on 8 March 2002, as to the terms of settlement and recorded in a file note that point 7 was not agreed (see para 10). Moreover, Ms Bartley had said that her client was not willing to accept the terms of settlement at all. It is noted that the terms of settlement were signed by Ms Bartley, presumably on the applicant's instructions. I do not see how it was then possible for Ms Bartley or the applicant to refuse to accept all, or any of the terms of settlement.

23 Secondly, Ms Moffit could not recall, in a conversation with Mr Rochfort, if he had referred to costs being waived by the respondent if it consented to the discontinuance of proceedings and a conclusion of the matter before the Industrial Magistrate. It seems clear enough that costs were very much a live issue when the respondent filed its notice of motion to dismiss the application before the Industrial Magistrate on 30 August 2002. Without making a finding either way on the evidence, it would appear to me to have been most unlikely for Mr Rochfort to consent to a discontinuance without costs, if it was believed the matter would still remain unresolved; that is, that the claim for redundancy pay would take on some other form - as indeed it did.

24 I note further that Ms Moffit's affidavit records a conversation between Ms Tan and Mr Rochfort wherein Mr Rochfort said "the only issue they (the respondent) raised was about pursuing costs but I advised them not to bother and they accepted that." Submissions For the respondent

25 Mr Rochfort submitted that this case concerned the principle of finality of litigation and the failure of the applicant to honour the terms of settlement agreed by her on 8 March 2002. He said it was an issue of public interest that no party should be harassed twice about the same matter.

26 Mr Rochfort submitted that the respondent would never have agreed to discontinue proceedings without seeking costs before the Industrial Magistrate if it had known the issue would be re opened. The matter had already been before O'Neill C and brought back to him for clarification. The Commissioner had made it clear to the parties the matter was finished. It was not open for this Commission to revisit or overturn the Commissioner's decision. It was relevant that at all material times the applicant was legally represented.

27 Mr Rochfort asserted that this matter was vexatious and that his client was being harassed and forced to pay further unnecessary costs. The matter constituted an abuse of process. For the principles of abuse of process Mr Rochfort relied upon Nisbet v Kilfoyle t/as Kilfoyle Earthmoving (unreported, Full Bench, Cahill VP, Bauer, Marks JJ, CT1120/96, 18 December 1996); Walton v Gardiner (1992) 177 CLR 378 and Moir v Calokerinos & Anor and Castle v Calokerinos & Anor [2003] NSWIRComm 82.

28 Mr Rochfort submitted that the applicant's claim was designed to achieve a collateral benefit, which was itself an abuse of process.

29 Mr Searle submitted that the respondent's motion was without merit and should be dismissed. Mr Searle referred to the authorities in relation to abuse of process, citing Rogers v the Queen (1994) 181CLR 251, Walton v Gardiner; Moevao v Department of Labour [1980] 1 NZLR 464 and Johnson v Gore Wood & Co [2002] 2 AC 1.

30 Mr Searle submitted that relief available under s 84 of the Act must be considered as different and separate to relief available under the Employment Protection Act. One seeks a remedy for unfairness, the other an enforcement of a right to redundancy payments. It followed that settlement of one cannot extinguish a right to the other. See Miller v University of New South Wales [2003] FCAFC 180. Moreover, the two legal actions could not be run together.

31 Mr Searle argued that, on their face, the terms of settlement did no more than settle the unfair dismissal proceedings. If this settlement was meant to be in full and final settlement of all claims against the employer, the terms of settlement could have easily said so - but didn't.

32 Mr Searle submitted that it is not correct to say that these proceedings are a re litigation of an earlier matter. An application for severance pay could not have been run in the earlier proceedings.

33 Mr Searle put that the discontinuance of proceedings before the Industrial Magistrate was no more than a realisation that the claim was in the wrong jurisdiction. There could be no abuse of process by properly bringing such a claim before the correct tribunal. Moreover, Mr Searle submitted that the respondent's notice of motion was itself an abuse of process. Industrial Magistrate Reiss had dismissed a similar motion in the proceedings before him and ruled that settlement of the unfair dismissal matter was no bar to a claim for severance pay. The respondent is seeking to re-agitate the same matter already determined by Magistrate Reiss. In these circumstances, the principle of estoppel should apply.

34 Mr Searle rejected the argument that the applicant's claim was designed for some collateral purpose. This was a scandalous assertion unsupported by any evidence.

35 Mr Searle submitted that a party seeking summary judgement bears the onus of satisfying the Court that there is no real issue to be tried or that the matter is so obviously untenable that it cannot possibly succeed. See General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. The respondent had not satisfied this onus.

36 Mr Searle concluded by submitting that the notice of motion was oppressive to the applicant who was a person of limited means. It should be dismissed with costs ordered in the applicant's favour.

37 Mr Rochfort quoted extensively from the transcript of the proceedings before O'Neill C to demonstrate that the matter had been concluded. He added that the motion before the Industrial Magistrate related to the issue of estoppel. That is not what is being argued in the present case.

38 Mr Rochfort questioned how Mr Searle could know the financial means of the respondent. The fact is the respondent is entitled not to waste money on fruitless litigation. Further, it was impertinent for Mr Searle to ask for costs when his client is represented pro bono.

39 Mr Rochfort said the respondent had always acted in good faith by making a number of offers of re-employment; all of which had been rejected. The fact she chose not to accept re-employment could not be held against the employer.

40 Mr Rochfort said the facts were that the applicant had always sought redundancy pay (as acknowledged by Ms Bartley) but had agreed to settle on another basis. He said the administration of justice would be brought into disrepute if O'Neill C's decision was allowed to be reviewed.

41 Mr Rochfort referred to the orders which may be made under the Employment Protection Act. He referred to s14(i), which states as follows: (1) The Commission may, after consideration of a report under section 11 and such inquiry as it thinks proper, make orders as to any or all of the following matters: (i) requiring the payment of any other sums, or the doing of any other act, matter or thing, in consequence of the termination of the employment of the employee, as appears to the Commission to be just and proper. Mr Rochfort emphasised the words " just and proper " and said these are matters of fairness. Accordingly, it would be just, proper and fair to grant the notice of motion.

42 Finally, Mr Rochfort sought a costs order against the applicant and her legal advisors.

43 From the background earlier outlined, it is my considered opinion that the respondent was entitled to regard the applicant's claim for redundancy pay as being settled in the proceedings before O'Neill C in 2002. After all, the applicant's legal representative made plain that the unfair dismissal proceedings involved redundancy payments. Ms Bartley said on transcript: Commissioner, I might just clear the matter up. When the application was made for an unfair dismissal application the client - she wasn't with Kingsford at that time - did also put on her application for a redundancy payment. (Tp.3 of 21 August 2002)

44 Moreover, even if the applicant was entitled to redundancy payments arising from her termination of employment on 14 October 2001 (about which I have some doubt), she could hardly be said to have a "live" redundancy claim when she was offered re-employment on several occasions with continuity of employment.

45 Put another way, it seems to me that the settlement itself recognised that the applicant was not redundant. It would be a strange result indeed if an ongoing claim to redundancy payments could be sustained in these circumstances. It matters little that the applicant chose not to accept the settlement. The respondent, in my view, had appropriately discharged its obligations under the Act to settle the claim, and did so by giving primacy to re-employment.

46 It must be said, at this juncture, that the fact that the applicant was offered re-employment, must be a relevant consideration for the Commission to have regard to in the exercise of its discretion to make orders for redundancy pay under s14(1)(a) of the Employment Protection Act. However, I need take this matter no further.

47 The situation here is entirely distinguishable to a claim for underpayment of wages, superannuation or other entitlements which arise as a consequence of the performance of work during the employment itself. Such rights are not extinguished by the settlement of an unfair dismissal claim. See Weisser v Spur Group Pty Limited [2003] NSWIRComm 79. This is a claim directly related to the termination of employment. The Commission is well empowered to consider the fairness or otherwise of the dismissal in s84 proceedings, even where such a dismissal is due to reasons of redundancy. See Outboard World v Muir (1993) 51 IR 167. In Shop, Distributive and Allied Employees' Association, New South Wales and W D & H O Wills Holdings Ltd [2000] NSWIRComm 98, I referred to the obligations on employers and employees in redundancy situations: A body of well settled contemporary industrial principles has developed from these, and many other, authorities. They may be summarised as follows. In redundancy situations an employer is obliged to: 1. give reasonable notice to employees and/or their Unions; 2. adequately consult with employees and/or their Unions on the impact of the proposed changes; 3. explore genuine alternative options for redundancy, such as redeployment or relocation;

4. ensure such options are fairly offered to the affected employees;

5. provide reasonable standards of redundancy benefits;

6. provide appropriate ancillary services, such as time off to seek alternative work, retraining opportunities, outplacement services or financial planning;

7. ensure employees nominated for redundancy are fairly selected on an objective and unbiased basis. Notwithstanding the employer's obligations, there are certain reciprocal obligations on employees when confronted with genuine efforts by the employer to minimise the impact of potential redundancy. These obligations include: a) a willingness to participate in consultation with the employer;

b) genuinely participating in exploring alternatives to redundancy;

c) not unreasonably refusing to accept retraining, alternative employment, redeployment or relocation. A number of decisions of the Australian Industrial Relations Commission are pertinent to the employees' obligations. In Clothing & Allied Trades Union of Australia v Algray Pty Ltd , 31 IR 365, Merriman C said: In considering all of the aspects of these two claims, the company seeks relief on the basis that neither former employee was actively seeking a commitment to employment or cooperating with the company as to future employment. The company's contention in this matter is supported by a decision of the Industrial Commission of SA in the matter of the Milk Processing and Cheese Manufacturing Etc (Appeal) case. In its decision the Full Commission said: Like the Australian Commission, we agree that, if employment of a suitable nature and returning a comparable remuneration can no longer be found or is not arranged for by the employer, then it is appropriate to require special provision to be made. It goes without saying that any employee who unreasonably either declines such employment or fails to cooperate in mitigating any disadvantage in an appropriate manner can scarcely be heard to seek the same special treatment as those who do. I certainly support this decision that in a redundancy situation where the employer is genuinely attempting to find alternative employment an employee should cooperate in every way to accommodate the alternative employment efforts.

48 It is abundantly clear from the s84 application and the transcript of proceedings before the Commissioner that the payment of monetary compensation was part of her claim for alleged unfair dismissal. The applicant's representative even accepted that a claim for redundancy payments had been made (see Para 43). The Commissioner accepted that the termination related to redundancy when he said on 21 August 2002: Commissioner: Redundancy is termination. There is no question. But the termination matter was settle (sic), there was no question about that. The termination matter was settled, the redundancy matter was the issue which was before the Commission as a termination. That matter was settled. Mr Rochfort , I don't believe that I can issue orders because the matter has been concluded and it has been settled. What you can do is to take what I have said today on today's proceedings to the magistrate and clearly demonstrate to him that the issue of the redundancy which related to the termination has been settled. That the payment has been made, there is no question about that. The unfair dismissal matter, which was a claim for unfair dismissal as a result of redundancy has been settled and payment has been made (Tp 2). And later: Commissioner: You can argue it there but let me say now that the issue of the termination which was in the form of redundancy has been settled and there is a document to show that and the terms of settlement have been executed and its all over. It was up to the parties to negotiate their settlement but whatever that was it doesn't matter and I don't know if the Chief Industrial Magistrate will even be interested in it because it's a private document. That was it. I think when you've settled it, you've settled it.

49 In my view, the fact that a claim for monetary compensation under s89 of the Act is settled on some different basis is precisely what the legislature had in mind when giving primacy to reinstatement or re-employment as forms of relief under Pt 6 ch 2 of the Act. Further, the fact that no compensation was paid under the terms of settlement agreed to and signed by the parties, cannot impugn the settlement or result in it being later called into question.

50 There can be no doubt that the applicant's representative accepted that the respondent had complied with the terms of settlement. The applicant, for medical reasons, could not. The applicant's legal representative advised that a notice of discontinuance would be filed and this was done.

51 As the Commissioner noted, had the claim for redundancy payments been pursued it would no doubt have formed part of the settlement. It would have been open for the applicant to refuse any offers of settlement which did not include redundancy payments and seek the arbitration of her claim. The fact of the matter was that she settled her claim by instructing her legal representative to sign the terms of settlement.

52 Mr Searle argued that the terms of settlement did no more than settle matter IRC01/7157 and could have included an expression such as "in full and final settlement of any rights or entitlements arising from the employment relationship." As it didn't expressly say so, it was not a complete settlement of all her rights arising from her employment with the respondent.

53 In my view, it is not only the terms of settlement which concluded the matter, but also the decision of O'Neill C given on 1 May 2002. That decision was final. There was no appeal. On this point, I refer to the provisions of s179 of the Act: 179(1) [Commission decision final] Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted): (a) is final, and (b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise). It might be argued that the matter was not finalised as the Commissioner allowed the parties an opportunity to re-list the matter should any difficulties arise. However, in my opinion, this opportunity related to difficulties arising from the implementation of the terms of settlement. It did not give any warrant for the terms of settlement, per se, to be overturned, upset or reviewed.

54 It was further argued that the applicant was of limited means and was faced with a wealthy and well resourced employer. I am not quite sure what the point of this submission was. However a few observations need to be made about it.

55 Firstly, it is self evident that in the overwhelming majority of cases, the employer will be better resourced to fund litigation than an individual employee. There is nothing remarkable about that. However, this cannot be justification for an employee to initiate proceedings against an employer, irrespective of the merits or jurisdictional validity of the action. Such a proposition runs directly counter to the proper administration of justice and the public interest. Secondly, no evidence was brought about the respective financial standing of the parties. Thirdly, the financial standing of parties cannot be a consideration, in the exercise of the Commission's powers to protect the proper administration of justice. Fourthly, the applicant was represented free of charge by Kingsford Legal Centre and pro bono by Counsel.

56 I can find no authority on the direct issues that were canvassed in this case; namely, whether the settlement of a s84 claim under the Act extinguished an employee's rights under the Employment Protection Act. Here, however, as an interlocutory step, the respondent seeks to have the Employment Protection Act matter dismissed as an abuse of process. I propose to now deal with the principles relevant to the course the Commission has been asked to take.

57 It is necessary firstly to observe that there is no express provision in either the Employment Protection Act or the Industrial Relations Act dealing with the Commission's power to dismiss a matter for abuse of process. At this point, I note that the Employment Protection Act is to have effect and be construed as if it is part of the Principal Act (the Industrial Relations Act 1996), except where the contrary intention appears (see s6). It follows therefore, that if the power to dismiss a matter as an abuse of process is available under the Industrial Relations Act 1996 then a similar power must logically exist under the Employment Protection Act.

58 In any event, this observation accords with the well recognised principle that all courts and tribunals have an inherent power to take such steps as are necessary to prevent an abuse of process in order to protect the administration of justice and the proper conduct of proceedings before it.

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.

60 While this was a judgment concerning the powers of the then Industrial Court of New South Wales as a superior court of record, the same principles apply to the Industrial Relations Commission of New South Wales. See Broken Hill Chamber of Commerce and Construction, Forestry, Mining and Energy Union (NSW Branch) [2002] NSWIRComm 244. In Jago v District Court (NSW) (1989) 168 CLR 23 referred to above, Gaudron J said the power to permanently stay a proceedings is exercisable in civil proceedings if the administration of justice so demands.

61 I would also refer to the passage cited by Mr Searle in Johnson v Gore Wood & Co [2002] 2 AC 1, where Lord Bingham at 31 said: But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with then. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceedings involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.

62 After considered deliberation, it is my opinion that the respondent's notice of motion should succeed on a number of grounds.

63 Firstly, I would rely on what was said in Walton v Gardiner, that "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." As mentioned earlier, I regard the matter as concluded by the terms of settlement of 8 March 2002 and O'Neill C's decision of 1 May 2002.

64 Secondly, it would be manifestly unfair to the respondent to have faced three matters over a period of almost two years about essentially the same set of facts and circumstances and where there has been at least three offers of re-employment proposed by the respondent and not taken up.

65 Thirdly, I do not believe that continuing this case will result in the Commission's processes being used properly and fairly and that ending the matter will be in the public interest and in the proper administration of justice.

66 Mr Searle submitted that the respondent's notice of motion was itself an abuse of process for which costs should be awarded in favour of the applicant. It was said that Industrial Magistrate Reiss had considered and dismissed a similar notice of motion and the respondent is seeking to re-agitate the same issue. This constituted an abuse of process. I cannot agree with this submission for the following reasons.

67 It would have been pellucidly clear (as was eventually recognised by the applicant's legal representatives), that the Industrial Magistrate had no jurisdiction to deal with a claim for redundancy payments under the Employment Protection Act. Jurisdiction under that Act resides only with the Industrial Relations Commission. Section 12(2) refers to the jurisdiction of the Commission under the Act: Notwithstanding anything in section 30B of the Principal Act, but subject to section 15 of this Act, the jurisdiction of the Commission under this Act may be exercised by:

(a) a member, or (b) a conciliation commissioner, to whom consideration of the report is for the time being allocated by the President.

68 In other words, unless the claim for redundancy pay arose as an award breach, the claim was never, nor could it have been properly agitated before the Industrial Magistrate. It seems to me, in these circumstances, that the applicant's claim before the Industrial Magistrate would have tumbled at the first hurdle and been dismissed for want of jurisdiction.

69 Secondly, even if the Magistrate's decision was made within jurisdiction, there were no details provided to me as to what evidence was before his Worship or what reasoning informed his Worship's decision.

70 For the aforementioned reasons, I am satisfied that the facts and circumstances of this matter warrant a conclusion that this application is an abuse of process. Accordingly, I grant the respondent's notice of motion filed on 18 August 2003. I order that Matter IRC03/2391 be dismissed.

71 Both parties sought costs in these proceedings. Mr Rochfort sought costs against both the applicant and the applicant's legal representative, Kingsford Legal Centre. I am not disposed to grant such an application at this stage, for the following reasons.

72 Rule 209 of the Industrial Commission's Rules deals with the procedure for making a claim of costs against a barrister, solicitor or agent due to delay, misconduct etc. Assuming this rule applies to proceedings under the Employment Protection Act, neither party put any submissions as to the requirements under r209. In particular, I note that the Rule requires the Commission to give the barrister, solicitor or agent "a reasonable opportunity to be heard" - Rule 209(1) and the Commission may refer the matter to the Registrar for inquiry and report - Rule 209(3). It would be premature and inappropriate to determine such an application absent of the parties' submissions on the issue.

73 Secondly, there is no specific provision for costs orders under the Employment Protection Act. The Commission was not taken to any authorities on the matter, nor offered any submissions on the subject. In my opinion, the Commission should have the benefit of the parties' considered submissions on the Commission's powers to award costs in proceedings under the Employment Protection Act.

74 Thirdly, Mr Rochfort put no details of his client's costs associated with these proceedings. Moreover, he did not identify what proportion of costs should be awarded against the applicant and her legal representatives. As costs are discretionary (s181(1)(b) of the Act) and the Commission may determine by whom, and to what extent costs are to be paid (s181(1)(c) of the Act), I would require further details before finally determining any costs application.

75 Accordingly, costs in this matter are reserved. Should a costs application be pursued, the Commission requires a notice of motion to that effect be filed within 14 days. Should such a notice of motion be filed, I will list the matter shortly thereafter for directions. At that time, the Commission will entertain any application by the parties as to how the motion should be processed.

76 Unless otherwise advised, proceedings in Matter No. IRC03/2391 are concluded.

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