Health Services Union NSW v Michael Alexander Williamson [2013] NSWIRComm 3

Health Services Union NSW v Michael Alexander Williamson [2013] NSWIRComm 3

Section 270(2) of the Industrial Relations Act 1996 creates a civil action by a State organisation to recover as a debt profit, loss or damage arising from an officer's contravention of Div 5, with the contravention to be established on the civil standard. It does not require the institution or successful prosecution of criminal proceedings and is not a proceeding against a person for an offence. Because the Industrial Court proceeding was civil and closely associated with related Supreme Court proceedings forming part of the same controversy, transfer to the Supreme Court under s 151(2) of the Civil Procedure Act 2005 was appropriate.

Jurisdiction
Australia
Judgment Date
01 February 2013
Procedural Posture
Interlocutory Applications / Notices of Motion: HSU Sought Transfer to the Supreme Court of New South Wales; Williamson Opposed Transfer and Sought Dismissal
Outcome
Williamson's motion was dismissed; HSU's transfer motion was granted; costs awarded to HSU.
Legal Topics
['recovery of Monies From Former Officer of State Organisation' 'contraventions of Ss 267 and 268 of the Industrial Relations Act 1996' 'whether Proceedings Under S 270(2) of the Industrial Relations Act 1996 Are Civil or Criminal' 'transfer of Proceedings Under S 151 of the Civil Procedure Act 2005']
['industrial Relations' 'registered Organisations' 'civil Procedure' 'statutory Interpretation'] ['recovery of Monies From Former Officer of State Organisation' 'contraventions of Ss 267 and 268 of the Industrial Relations Act 1996' 'whether Proceedings Under S 270(2) of the Industrial Relations Act 1996 Are Civil or Criminal' 'transfer of Proceedings Under S 151 of the Civil Procedure Act 2005']

Case Brief

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Procedural Posture

Interlocutory Applications / Notices of Motion: HSU Sought Transfer to the Supreme Court of New South Wales; Williamson Opposed Transfer and Sought Dismissal

Legal Issues

  1. 1 ["Whether an organisation's action under s 270(2) of the Industrial Relations Act 1996 requires prior institution or proof of criminal proceedings for offences under Div 5." 'Whether proceedings under s 270(2) of the Industrial Relations Act 1996 are civil or criminal proceedings.' 'Whether the proceeding should be transferred to the Supreme Court of New South Wales under s 151(2) of the Civil Procedure Act 2005.']

Ratio Decidendi

Section 270(2) of the Industrial Relations Act 1996 creates a civil action by a State organisation to recover as a debt profit, loss or damage arising from an officer's contravention of Div 5, with the contravention to be established on the civil standard. It does not require the institution or successful prosecution of criminal proceedings and is not a proceeding against a person for an offence. Because the Industrial Court proceeding was civil and closely associated with related Supreme Court proceedings forming part of the same controversy, transfer to the Supreme Court under s 151(2) of the Civil Procedure Act 2005 was appropriate.

Court Disposition

Williamson's motion was dismissed; HSU's transfer motion was granted; costs awarded to HSU.

Orders

  • ["The respondent's motion is dismissed." 'The proceeding in Matter No IRC 1129 of 2012 is transferred to the Supreme Court of New South Wales in accordance with s 151(2) of the Civil Procedure Act 2005.' "The respondent is to pay the applicant's costs of the motions."]