Newcastle FM Pty Ltd v Webb, M.E

[1994] FCA 646

64-6 99

JUDGMENT No. ..... . , . . , , J , .- ,

THE FEDERAL COURT OF AUS- ) )

N EW SO UTH WALES DISTRICT RE GISTRY ) No. NG 3349 of 1994

)

L - DIVISION )

BETWEEN:  NEWCASTLE FM PTY T - n

Applicant

AND :  MICHAEL EDWARD WEBB

Respondent

26 August 1994

REASONS FOR JUDGMENT

LOCKHART J.

This is a motion by the respondent to the principal proceeding, Michael Edward Webb, that the proceeding be stayed pending the determination of certain proceedings in the New South Wales Industrial Court or, alternatively, that the proceeding be stood out of the list pending the determination of the New South Wales Industrial Court proceedings. The applicant in the principal proceedings and the respondent to the motion is Newcastle FM Pty Limited. Newcastle FM commenced the proceedings in this Court on 15 July 1994 by filing an application and a statement of claim. Newcastle FM brings the proceedings under S. 232 of the Corporations Law and under the general law.

referred to in the application and in more detail in the
Newcastle FM asserts that Mr Webb has breached both his

contract of employment and his statutory duties owed as a

director of the company in various respects, which are

statement of claim. It is sufficient for present purposes for me to say that the assertions in the statement of claim include assertions of improper use by Mr Webb of company property, including a motor vehicle, mobile phone and television set and the receipt of benefits at the company's expense and misuse of certaln funds which are said to be the property of the company.

Mr Webb has not yet filed a defence to the proceeding in this Court. On 2 August 1994, Mr Webb and his wife commenced proceedings pursuant to S. 275 of Industrial Relations Act 1991 (NSW) in the Industrial Court of New South Wales and those proceedings are well advanced. It is alleged by Mr and Mrs Webb that the issues raised in the two sets of proceedings are, if not identical, virtually identical. There is no doubt that the scope of this Court's jurisdiction and power under S.

232 of the Corporations Law is considerable. There is also no

doubt that the scope of the inquiry to be conducted by the

referred to certain authorities to support that point, which I	Industrial Relations Act is also very wide, and I have been Industrial Court of New South Walea under s. 275 of the
do not find it necessary to repeat.
In my view, although the issues in these two sets of proceedings are not identical, if only because the assertions of breaches of fiduciary duty arising from Mr Webb's position as managing director of Newcastle FM are not before the New South Wales Industrial Court, the basic sub-stratum of fact that underlies the two sets of proceedings seems to be much the same. It appears that issues common to both proceedings include whether Mr Webb breached his contract of employment and possibly whether he breached his statutory duty, whether the employment of Mr Webb was properly determined by Newcastle TV, whether Mr Webb received benefits at the company's expense and if so, what should be done about that to rectify the position, whether Newcastle TV suffered any damage as a result of Mr Webb's alleged breaches of contract or statutory duty and whether he should be required to return to the company certain of the assets which it is alleged he has improperly obtained or if not improperly obtained, improperly retained. I have no doubt that the basic sub-stratum of issues and fact is common to both cases. In addition, Mrs Webb is herself a party to the Industrial Court proceedings, which will have to proceed anyhow at least in relation to her, whatever happens to these proceedings in this Court. The determination of the
most of the factual issues that are raised in the S. 232 proceedings in the Industrial Court will necessarily involve findings being made by that court with respect to many if not proceedings under the Corporations Law in this Court.
I think the determination by the Industrial Court of the issues before it will largely determine the issues raised in these proceedings. However, the determination of the proceedings in this Court will not determine all the issues raised in the Industrial Court proceedings and certainly will not determine them at all in relation to Mrs Webb.
The Industrial Court proceedings are well advanced, further advanced than the proceedings in this Court. There would appear to be substantial commonality of witnesses in the two proceedings. It would be undesirable in the interest of the parties and indeed, in the public interest and indeed, in the conduct of case management by this court of its procedures, that there be two sets of proceedings in two different courts dealing with essentially the same factual matrix and large commonality of legal issues. Whether the proceedings are stayed in this Court or simply stood out of the list, pending the determination of the Industrial Court proceedings is perhaps a matter of no great consequence, but I think the preferable course is to stay this proceeding until the Industrial Court proceeding has been determined.
Of course, the parties will always have liberty to apply and they can bring the matter back here on reasonable notice, if some event should change and it may become clear that this
proceedings should be allowed to continue, notwithstanding the fact that the Industrial Court proceedings may not have been determined. The order for stay is not sought on a permanent
basis. It is by its very nature transient and temporary.
Accordingly, the Court orders that the proceedings in this Court NG 3349 of 1994 be stayed, pending the determination of proceedings in the New South Wales Industrial Court number CT 94/1126 between Michael Edward Webb and Lisa Webb and Newcastle FM Pty Limited. The costs of this motion will be costs in this Court's proceeding.

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Associate

Dated: 26 August 1994 e A

Counsel for the Applicant	Mr N Cotman
Solicitors for the Applicant :	David Carr & Associates

Counsel for the Respondent	Mr Klmber
Mr R Kenzie QC

Solicitors for the Respondent :	Simpsons
Date of Hearing	26 August 1994
Date of Judgment	26 August 1994