Application by Syddeck Pty Ltd for leave to appeal and appeal against a decision and orders of the Chief Industrial Magistrate given on 15.1.2003 and 22.2.2005 in Matter No 156403/02. Application by Syddeck Pty Ltd for leave to appeal and appeal against a decision and orders of the Chief Industrial Magistrate given on 15.1.2003 and 22.2.2005 in Matter No 156402/02 [2005] NSWIRComm 115 (8 April 2005)

Last Updated: 14 April 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Application by Syddeck Pty Ltd for leave to appeal and appeal against a decision and orders of the Chief Industrial Magistrate given on 15.1.2003 and 22.2.2005 in Matter No 156403/02. Application by Syddeck Pty Ltd for leave to appeal and appeal against a decision and orders of the Chief Industrial Magistrate given on 15.1.2003 and 22.2.2005 in Matter No 156402/02 [2005] NSWIRComm 115

FILE NUMBER(S): IRC 1325 and 1326

HEARING DATE(S): 08/04/2005

EX TEMPORE DATE: 08/04/2005

PARTIES:

APPLICANT:

Syddeck Pty Ltd

RESPONDENT:

Transport Workers' Union of New South Wales

JUDGMENT OF: Haylen J

LEGAL REPRESENTATIVES

APPLICANT:

Mr A MacInnis, Solicitor

SOLICITORS:

Dibbs Barker Gosling

RESPONDENT:

Mr A Hatcher of counsel

SOLICITOR:

Mr Michael Kaine

CASES CITED: Bellambi Bowling and Recreation Sports Club Limited v Grammel (2001) 107 IR 104

Hanson Yuncken Pty Limited v Andreas Costopoulos [2004] NSWIRComm 91

Re Transport Industry Waste Collection and Recycling (State) Award (2000) 102 IR 192

State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) reported in (2000) 101 IR 131

LEGISLATION CITED:

JUDGMENT:

- 3 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Haylen J

8 April 2005

Matter No IRC 1325 of 2005

SYDDECK PTY LTD v TRANSPORT WORKERS’ UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH

Application by Syddeck Pty Limited for leave to appeal and appeal against a decision and orders of the Chief Industrial Magistrate given on 15.1.2003 and 22.2.2005 in Matter No 156403/02

Matter No IRC 1326 of 2005

SYDDECK PTY LTD v TRANSPORT WORKERS’ UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH

Application by Syddeck Pty Limited for leave to appeal and appeal against a decision and orders of the Chief Industrial Magistrate given on 15.1.2003 and 22.2.2005 in Matter No 156403/02

EX TEMPORE JUDGMENT

[2005] NSWIRComm 115

This is an application for the staying of orders made by the Chief Industrial Magistrate over some period of time, including orders finally completed this year. All the matters involved the construction of the Transport Industry (State) Award and its application to what might be called chauffeurs.

The hearing was adjourned to allow evidence to be filed and that evidence to be replied to by the respondent to the appeal as to the convenience or inconvenience of having to meet the orders. That evidence was not filed. That is not an issue that now arises for serious consideration on the application for a stay. There is no issue about the principles that apply. My attention has been drawn to a recent judgment in Hanson Yuncken Pty Limited v Andreas Costopoulos [2004] NSWIRComm 91 and the principles set out in a number of cases including the Bellambi Bowling and Recreation Sports Club Limited v Grammel (2001) 107 IR 104 and also in Re Transport Industry Waste Collection and Recycling (State) Award (2000) 102 IR 192. I have also made reference to the decision in State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) reported in (2000) 101 IR 131. The considerations might be simply stated as these: whether there is an arguable case; where the balance of convenience lies: and, perhaps, what might be the chances of success on appeal. It is relevant in exercising this jurisdiction to consider whether the appeal will be rendered nugatory if a stay is not granted. It is usual for the Court to consider where the justice of the case lies and what will be stood to be lost by either the applicant or the respondent on the motion if the stay is not granted or whether there might be some irreparable damage to a party.

Today Mr McInnis has laboured with vigour and some ingenuity but without evidence, and without a real basis, for the application of any of these principles. It seems to me that as to whether there is an arguable case, that may be so. The issue is not without its controversy.

The Chief Industrial Magistrate however, in a considered judgment, weighed as would be necessary in a case of this type, a number of factors, some pointing in favour of award coverage and some pointing against award coverage and reached a conclusion that appears at least to have some basis of support. That would rather suggest the chances of success of the appeal at best might be evenly balanced, perhaps a little more or a little less as minds might legitimately disagree about that matter, but there is certainly nothing about it which suggests to me that on an arguable case or on the chances of success on appeal, this is a case where a stay order should be granted.

As to the balance of convenience it seems to me that I have a position where an opportunity was given to the appellant, as applicant on the stay, to put before the court evidence as to the difficulty if it had to meet the orders sought. That opportunity ultimately has not been taken.

It would seem to me, then, that the usual approach applies, that is the successful parties (although the union took this action, its members have been the recipient of the fruit of the union’s victory) should not be held out of their success. The balance of convenience, in my view, is against the grant of a stay. Overall, the justice of the case does not warrant a stay. Of the other considerations that I have mentioned, I don’t understand them to apply in this case. On that basis the stay is refused.

LAST UPDATED: 13/04/2005