Falconer v North and Rainbird [2001] NSWIRComm 98

Industrial Relations Commission of New South Wales in Court Session

CITATION : Falconer v North and Rainbird [2001] NSWIRComm 98 APPELLANTS: John Falconer Vincent Patrick Sweeney Duncan Paul Mount Andrew John Sigalla PARTIES : Terrence Joseph Caplice

RESPONDENTS: William North Mark Rainbird Consolidated Gaming Corporation Ltd FILE NUMBER: IRC 142, 157, 158, 166, 167, 168, 169, 170, 171 of 2001 CORAM: Wright J President; Glynn J; Hungerford J CATCHWORDS : Appeal - Leave to appeal - Appeals from judgment granting application to join additional respondents in s 106 proceedings - Leave to appeal refused - Appeals dismissed - Refusal of leave did not give any greater precedent value to judgment at first instance. LEGISLATION CITED : Industrial Relations Act 1996 s 106 CASES CITED : North and Rainbird v Consolidated Gaming Corporation Ltd [2000] NSWIRComm 258 HEARING DATES: 04/24/2001 EXTEMPORE JUDGMENT DATE : 04/24/2001

APPELLANTS: Mr R S Warren of counsel McDermott & Associates, Solicitors (Mr John Emmet McDermott)

Mr G J Hatcher of counsel Freehills, Solicitors (Mr Anthony B Longland)

Mr R T Beech-Jones of counsel LEGAL REPRESENTATIVES: Hegarty & Elmgreen, Lawyers (Mr John Lawrence Hegarty)

RESPONDENTS: Mr J J E Fernon of counsel Toomey Pegg Drevikovsky (Mr Edward Heggarty)

Mr B D Hodgkinson of counsel Kemp Strang, Lawyers (Ms Lisa Berton)

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President GLYNN J HUNGERFORD J

Tuesday, 24 April 2001

Matter No IRC 142 of 2001 JOHN FALCONER v WILLIAM NORTH AND OTHERS Application for leave to appeal and appeal against a decision of Justice Marks given on 13.12.2000 in Matter Nos IRC2000/469 and IRC2000/470

Matter No IRC 157 of 2001 VINCENT PATRICK SWEENEY v WILLIAM NORTH AND OTHERS Application for leave to appeal and appeal against a decision of Justice Marks given on 13.12.2000 in Matter No IRC2000/469

Matter No IRC 158 of 2001

VINCENT PATRICK SWEENEY v MARK RAINBIRD AND OTHERS Application for leave to appeal and appeal against a decision of Justice Marks given on 13.12.2000 in Matter No IRC2000/470

Matter No IRC 166 of 2001 DUNCAN PAUL MOUNT v MARK RAINBIRD AND OTHERS Application for leave to appeal and appeal against a decision of Justice Marks given on 13.12.2000 in Matter No IRC2000/470

Matter No IRC 167 of 2001 ANDREW JOHN SIGALLA v MARK RAINBIRD AND OTHERS Application for leave to appeal and appeal against a decision of Justice Marks given on 13.12.2000 in Matter No IRC2000/470

Matter No IRC 168 of 2001

ANDREW JOHN SIGALLA v WILLIAM NORTH AND OTHERS Application for leave to appeal and appeal against a decision of Justice Marks given on 13.12.2000 in Matter No IRC2000/469

Matter No IRC 169 of 2001 DUNCAN PAUL MOUNT v WILLIAM NORTH AND OTHERS Application for leave to appeal and appeal against a decision of Justice Marks given on 13.12.2000 in Matter No IRC2000/469

Matter No IRC 170 of 2001 TERRENCE JOSEPH CAPLICE v WILLIAM NORTH AND OTHERS Application for leave to appeal and appeal against a decision of Justice Marks given on 13.12.2000 in Matter No IRC2000/469

Matter No IRC 171 of 2001 TERRENCE JOSEPH CAPLICE v MARK RAINBIRD AND OTHERS Application for leave to appeal and appeal against a decision of Justice Marks given on 13.12.2000 in Matter No IRC2000/470

JUDGMENT OF THE COURT (Extempore) [2001] NSWIRComm 98

1 These proceedings involve applications for leave to appeal and, subject to leave being granted, appeals against orders made by Marks J on 13 December 2000 in relation to applications made by the respective first respondents in each appeal to join certain natural persons, including the appellants, as parties to proceedings filed pursuant to s 106 of the Industrial Relations Act 1996: see North and Rainbird v Consolidated Gaming Corporation Ltd [2000] NSWIRComm 258 2 Prior to his Honour's judgment, the only respondent to the proceedings at first instance was the corporation which formerly employed the first respondents. 3 The Full Bench has considered the submissions of the applicants for leave to appeal and also those of the second respondent, the former employer, which has also submitted that leave to appeal should be granted and the appeal upheld.

4 We have decided that leave to appeal should be refused. Consistent with the practice of Full Benches of this Court, we do not intend to give reasons for the decision to refuse leave save for one observation. 5 Some of those parties submitting that leave to appeal should be granted have submitted as a basis for the grant of leave that his Honour's judgment might operate as an inappropriate precedent if it was allowed to stand. In refusing leave to appeal it is to be observed that his Honour's judgment is one of a number of recent judgments at first instance on the issue of joinder in s 106 proceedings. The refusal of leave does not provide to his Honour's judgment any different standing in relevant respects to other judgments of judges of this Court sitting alone. 6 We accordingly make the following orders: 1. Leave to appeal refused. 2. Appeals dismissed. 3. The appellants and the second respondent jointly and severally pay the respective first respondents' costs of these proceedings. 4. Liberty to apply granted as to order number 3, provided that such liberty is exercised within fourteen days.

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