Hardinge v Gert Schidor Design Pty Ltd & Anor [2004] NSWIRComm 106

Hardinge v Gert Schidor Design Pty Ltd & Anor [2004] NSWIRComm 106

The material before the court is insufficient at this interlocutory stage to determine jurisdiction, or to find the proceedings abusive due to parallel proceedings; it is not possible to conclude the Commission lacks jurisdiction nor that the claim is frivolous or an abuse of process. The application to strike out or dismiss the summons is therefore refused.

Parties
Applicant: Biron Hardinge; First Respondent: Gert Schidor Design Pty Ltd; Second Respondent: Gert Schidor
Jurisdiction
Australia
Judgment Date
27 April 2004
Procedural Posture
Interlocutory Application (motion to Dismiss/summarily Set Aside) in Unfair Contract Claim / Interlocutory Judgment on Notice of Motion to Dismiss
Outcome
notice of motion to dismiss/set aside dismissed
Legal Topics
Unfair Contract Jurisdiction, Abuse of Process, Parallel Proceedings, Contract for Work in Industry, Discretionary Dismissal, District Court Proceedings
Industrial Law Employment Law Procedure Unfair Contract Jurisdiction Abuse of Process Parallel Proceedings Contract for Work in Industry Discretionary Dismissal +1 more

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Parties

Biron Hardinge

Applicant

Gert Schidor Design Pty Ltd

First Respondent

Gert Schidor

Second Respondent

Procedural Posture

Interlocutory Application (motion to Dismiss/summarily Set Aside) in Unfair Contract Claim / Interlocutory Judgment on Notice of Motion to Dismiss

Legal Issues

  1. 1 Whether the proceedings in the Industrial Relations Commission are an abuse of process due to parallel District Court proceedings
  2. 2 Whether the Commission has jurisdiction under s 106 of the Industrial Relations Act 1996 over the contract in question
  3. 3 Whether there is a proper basis to strike out the claim against the second respondent

Ratio Decidendi

The material before the court is insufficient at this interlocutory stage to determine jurisdiction, or to find the proceedings abusive due to parallel proceedings; it is not possible to conclude the Commission lacks jurisdiction nor that the claim is frivolous or an abuse of process. The application to strike out or dismiss the summons is therefore refused.

Court Disposition

notice of motion to dismiss/set aside dismissed

Orders

  • The notice of motion filed on 8 December 2003 is dismissed.
  • The respondents are directed, in accordance with r 18A(4) of the Industrial Relations Commission Rules, to file a reply to the summons within 21 days of the date of this judgment.