Moir v Calokerinos & Anor and Castle v Calokerinos & Anor [2003] NSWIRComm 82

Moir v Calokerinos & Anor and Castle v Calokerinos & Anor [2003] NSWIRComm 82

The respondents failed to establish that the s 106 proceedings were an abuse of process: there was no evidence permitting an inference that the applicants' proceedings were commenced by, on behalf of, or at the instigation of the CEPU, or as part of a concerted plan to force the respondents into submission. The claims were not merely attempts to enforce Federal industrial instruments but alleged unfairness under s 106, including by reference to remuneration which would have been paid for the same work at Australia Post, and the respondents had not shown that the claims could not possibly succeed. The AIRC proceedings were materially different in parties, nature, relief and effect, and...

Jurisdiction
Australia
Judgment Date
15 April 2003
Procedural Posture
Applications Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Respondents' Notices of Motion Seeking Dismissal or Permanent Stay for Alleged Abuse of Process, or Alternatively a Stay Pending Australian Industrial Relations Commission Proceedings
Outcome
The respondents' notice of motion was dismissed, with costs reserved.
Legal Topics
['unfair Contract' 'abuse of Process' 'permanent Stay' 'summary Dismissal' 'concurrent Proceedings' 'australian Industrial Relations Commission Proceedings' 'federal Industrial Instruments']
['industrial Relations' 'employment Law' 'civil Procedure'] ['unfair Contract' 'abuse of Process' 'permanent Stay' 'summary Dismissal' 'concurrent Proceedings' 'australian Industrial Relations Commission Proceedings' 'federal Industrial Instruments']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Applications Under S 106 of the Industrial Relations Act 1996 / Interlocutory Judgment on Respondents' Notices of Motion Seeking Dismissal or Permanent Stay for Alleged Abuse of Process, or Alternatively a Stay Pending Australian Industrial Relations Commission Proceedings

Legal Issues

  1. 1 ['Whether the s 106 proceedings should be dismissed or permanently stayed as an abuse of process because of alleged undue pressure and threatened multiple litigation by the CEPU.' 'Whether the proceedings should be struck out or permanently stayed because the applicants sought relief by reference to Federal industrial instruments which did not bind the respondents.' 'Whether the proceedings should be stayed pending final determination of proceedings before the Australian Industrial Relations Commission.']

Ratio Decidendi

The respondents failed to establish that the s 106 proceedings were an abuse of process: there was no evidence permitting an inference that the applicants' proceedings were commenced by, on behalf of, or at the instigation of the CEPU, or as part of a concerted plan to force the respondents into submission. The claims were not merely attempts to enforce Federal industrial instruments but alleged unfairness under s 106, including by reference to remuneration which would have been paid for the same work at Australia Post, and the respondents had not shown that the claims could not possibly succeed. The AIRC proceedings were materially different in parties, nature, relief and effect, and...

Court Disposition

The respondents' notice of motion was dismissed, with costs reserved.

Orders

  • ['The notice of motion is dismissed.' 'Costs are reserved.' 'Liberty to apply with respect to costs.']