Lowe v Bea Systems Pty Ltd (extempore) [2005] NSWIRComm 112 (4 April 2005)

Last Updated: 14 April 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Lowe v BEA Systems Pty Ltd (extempore) [2005] NSWIRComm 112

FILE NUMBER(S): 1645

HEARING DATE(S): 04/04/2005

EX TEMPORE DATE: 04/04/2005

PARTIES:

APPLICANT

David Arthur Lowe

RESPONDENT

BEA Systems Pty Ltd

JUDGMENT OF: Marks J

LEGAL REPRESENTATIVES

APPLICANT

Mr J de Meyrick of counsel

Solictor: Mr J Lakos

Lakos & Company Lawyers

RESPONDENT

Mr J Fernon SC

Solicitor: Ms K Thornton

Baker & McKenzie

CASES CITED: Crowe v UCS Developments Pty Limited [2003] NSWIRComm 234

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 3 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: MARKS J

Monday 4 April 2005

Matter No IRC 1645 of 2002

DAVID ARTHUR LOWE v BEA SYSTEMS PTY LTD

Application under s 106 of the Industrial Relations Act 1996

INTERLOCUTORY JUDGMENT ON ADJOURNMENT APPLICATION (EX TEMPORE)

(2005) NSWIRComm 112

1 The court has before it a notice of motion brought by David Arthur Lowe seeking to amend or further amend the proceedings by the addition of a second respondent BEA Systems Inc, that second respondent being in addition to the existing sole respondent BEA Systems Pty Limited.

2 The existing respondent and the proposed additional respondent have sought by notice of motion to have the hearing of the applicant's notice of motion deferred until a summons issued by those two companies in the New South Wales Court of Appeal can be dealt with. That summons seeks orders in the nature of a prohibition against this court from dealing with the applicant's notice of motion seeking to amend the proceedings. The reason given for the application to the New South Wales Court of Appeal is that a judgment of a Full Bench of this court, in a matter of Crowe v UCS Developments Pty Limited [2003] NSWIRComm 234, is wrong. The applicant opposes the deferral of the hearing of his notice of motion whilst the matter awaits determination in the Court of Appeal.

3 In my opinion, these proceedings and the competing interlocutory applications raise matters of some difficulty. On its face, this is a court of superior jurisdiction competent to deal with all matters concerning its own procedures and its own powers and jurisdiction. There is a statutory right of appeal established by the relevant legislation to a Full Bench of this court. The New South Wales Court of Appeal has a supervisory jurisdiction which it exercises from time to time, in matters which are appropriate. The difficulty that I face is that, as a matter of principle, an application to the New South Wales Court of Appeal does not ipso facto operate as a stay of these proceedings.

4 In addition, it is a fundamental basis for the cheap, speedy and effective administration of justice in New South Wales that judges at first instance should be allowed to determine all matters within their power and jurisdiction, and that the cost and distraction created within the appellate process should be undertaken in connection with appeals properly instituted according to the usual hierarchical structure of courts in this state. If it were to be otherwise then the tendency would be for all matters to be determined by appellate benches of courts. There is no indication that this is to be a basic approach to the administration of justice in this state. The submissions made by counsel with respect to the determination of the notice of motion filed by the respondents have touched upon the nature and extent to which the Crowe decision may impact upon these proceedings. For my part, I am of the view that this court should determine this matter in accordance with the general approach and the general principles to which I have referred. There can be no guarantee that the New South Wales Court of Appeal will agree to deal with the summons filed by the respondents. There can be no guarantee about the outcome and no indication can be given as to the time likely to be taken for the summons to be dealt with by the Court of Appeal and for any eventual judgment to be delivered. The one guarantee is that a certain level of costs will be incurred in that process. On balance I am of the opinion that this court should proceed to determine the applicant's notice of motion and the notice of motion filed by the respondents is therefore dismissed. I will hear the parties with respect to costs at the conclusion of the proceedings. I now intend to deal forthwith with the applicant's motion to amend the summons.

LAST UPDATED: 08/04/2005