Stephen Wendt v Peace Birk and Others [2005] NSWIRComm 108 (11 April 2005)

Last Updated: 14 April 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Stephen Wendt v Peace Birk and Others [2005] NSWIRComm 108

FILE NUMBER(S): IRC 4961

HEARING DATE(S): 11/04/2005

EX TEMPORE DATE: 11/04/2005

PARTIES:

APPLICANT:

Stephen William Curtiss Wendt

FIRST RESPONDENTS:

Peace Birk and Surinder Paul Birk

SECOND RESPONDENT:

Zeiber Pty Ltd trading as The Road to Goa

JUDGMENT OF: Schmidt J Kavanagh J Boland J

LEGAL REPRESENTATIVES

APPLICANT:

Mr S Wendt, unrepresented

RESPONDENTS:

Mr P Birk, unrepresented

CASES CITED: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

FULL BENCH

CORAM: Schmidt J

Kavanagh J

Boland J

Monday, 11 April 2005

Matter No IRC 4961 of 2004

STEPHEN WENDT v PEACE BIRK AND OTHERS

Application by Stephen Wendt to extend time to appeal and leave to appeal against a decision of Chief Industrial Magistrate Miller given on 16 June 2004 in matter number CIM 76317/03

EXTEMPORE

JUDGMENT OF THE COURT

[2005] NSWIRComm 108

1 This is an application for leave to appeal and, if granted, an appeal. The parties were not legally represented and there were issues as to whether or not the directions given by Walton J, Vice-President in October 2004, as to preparation of the appeal for hearing had been complied with. In the circumstances, we decided to deal with the matter on the basis that leave to appeal should be dealt with as an initial and separate matter. Mr Wendt made extensive oral submissions as to his concerns about the proceedings below, in support of his case that leave to appeal should be granted.

2 Having heard the parties, we are satisfied that this is not a case where the appellant has demonstrated that leave to appeal should be granted. The issues raised on appeal do not go to questions of principle. They concern alleged errors in the exercise of discretion by the Chief Industrial Magistrate, particularly in relation to the procedures adopted at the hearing below. It was particularly argued that the appellant was not heard adequately about the case advanced below, given arrangements he had put in place for communications to be forwarded to him, while he was absent from Australia. This deprived him of a proper opportunity to put evidence before the Magistrate, before judgment was given.

3 We are satisfied that the appellant has not satisfied the onus which falls upon him. Leave to appeal is never granted lightly or automatically. The public interest test imposed by s188 of the Industrial Relations Act 1996 ('the Act') must be satisfied. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380.)

4 The appeal does not raise questions of principle, but the question of whether or not the Chief Industrial Magistrate erred in going to judgment, before the appellant had an opportunity to properly respond to the case advanced against him by his former employer, the respondent to the appeal.

5 We are satisfied that the material advanced by the appellant on appeal is incapable of leading to any views favourable to the appellant on this issue.

6 In those circumstances, it must be concluded that this case is not one in which leave to appeal may be granted. The public interest test is not satisfied.

Orders

7 For the reasons given, leave to appeal is refused and the appeal is dismissed. The usual order as to costs would be that the appellant pay the respondent's costs, as agreed or assessed. We order accordingly.

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LAST UPDATED: 11/04/2005