Tawfik v Plaspak Contoplas Pty Ltd [2004] NSWIRComm 179 (16 June 2004)

Last Updated: 24 June 2004

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Tawfik v Plaspak Contoplas Pty Ltd [2004] NSWIRComm 179

FILE NUMBER(S): 6884

HEARING DATE(S): 16/06/2004

EX TEMPORE DATE: 16/06/2004

PARTIES:

APPLICANT

Anthony Tawfik

RESPONDENT

Plaspak Contoplas Pty Ltd

JUDGMENT OF: Marks J

LEGAL REPRESENTATIVES

APPLICANT

Mr J H Pearce of counsel

Solicitor: Mr S Cahill

Taylor and Scott

RESPONDENT

Mr J Murphy of counsel

Solicitor: Mr T Vernier

Australian Business Lawyers

CASES CITED:

LEGISLATION CITED:

JUDGMENT:

- 3 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: MARKS J

Wednesday 16 June 2004

Matter No IRC 6884 of 2001

ANTHONY TAWFIK v PLASPAK CONTAPLAS PTY LTD

Application under s 106 of the Industrial Relations Act 1996

EXTEMPORE INTERLOCUTORY JUDGMENT ON AMENDMENT MOTION

1 After discussion with the parties, a measure of agreement has been reached in terms of the future conduct of these interlocutory proceedings, which I wish to record.

2 I should state at the outset that the notice of motion with which I am dealing, as filed by the respondent, sought a number of orders in the alternative. The first was that the amended summons be struck out in its entirety. The second was that designated parts of the amended summons be struck out.

3 The ground asserted that the court had no jurisdiction to hear the matter, or in the alternative, should exercise its discretion not to hear the matter. A further ground was specified in connection with a particular claim for the re-crediting of annual leave.

4 The question has arisen during the course of today's proceedings about the nature and extent of any residual entitlement that the applicant might have against the respondent to claim a lump sum payment in another jurisdiction, namely, what I assume is the successor to the Workers' Compensation Court.

5 Mr Pearce, counsel for the applicant, resisting the strike out motion, has indicated that he was unable to meet specific arguments about this matter today, and submitted that substantively he was ready to meet an argument concerning lack of jurisdiction, but not one which was directed to the nature and extent of this alternative relief in another jurisdiction.

6 To some extent this argument may have been raised by reference to the Court's discretion, but, in any event, the parties were not in a position to advance specific arguments based upon the legislative framework which applies to those other proceedings and to this other claim. I do not say this at all in any critical sense. It is a matter which has evolved during the course of submissions and dialogue between counsel and the Bench.

7 The proceedings, in terms of the interlocutory relief sought by the respondent, are stood over and may be restored to the list by either party making telephone contact with my Associate.

8 I ask that counsel exchange information as to precisely what further arguments are to be raised by either of them in connection with the interlocutory application and the manner in which it needs to be amended, so as to enable both parties and the court to understand precisely what arguments are to be raised and what material is to be referred to. To the extent that everyone will be aware of their respective argument, I dispense with the need to file any formal documentation with respect to the interlocutory application.

9 In terms of the substantive proceedings, the applicant concedes, and I understand the respondent to agree, through their respective counsel, that they should not be dealt with to finality whilst these outstanding proceedings in the other jurisdiction are not yet resolved.

10 Accordingly, I stand over the substantive proceedings to the direction list commencing at 9:30am on 10 December next, but this does not in any way prejudice or affect any earlier determination of any further or amended interlocutory application, including the interlocutory proceeding currently before me.

11 As the eventual outcome of these interlocutory proceedings is currently unknown, it seems preferable that the costs of today, and of the interlocutory proceedings generally, be reserved, and I so order.

LAST UPDATED: 23/06/2004