Sasha Benassi v Gourmet H.D. Services Pty Ltd

[1996] IRCA 86

DECISION NO:  86/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2547 of 1994

B E T W E E N:

SASHA BENASSI
Applicant

A N D

GOURMET H.D. SERVICES PTY LTD
Respondent

REASONS FOR DECISION
(delivered ex tempore)

8 March 1996  PARKINSON JR

This is my decision in relation to a notice of motion filed by the applicant on 12 December 1995 in matter number 2547 of 1995. The matter came on for hearing before me on 6 February 1996 on a notice of motion to reinstate proceedings and to enforce terms of settlement in the associated or inherent jurisdiction of the Court. There was no appearance for the respondent on that occasion notwithstanding that it had notice of this hearing, as is evident from its letter to the Court dated 1 February 1996 received that day.

In that letter the respondent requested that the matter be adjourned, relying upon the notice of listing having being forwarded to the wrong address,  the director of the Respondent being interstate and other matters.  To the date of that letter, the respondent had not advised the Court of its change of address from that noted on the original notice of appearance.  I decided that whilst I was inclined to, and did in fact accede to, the application to reinstate the proceedings contained in the notice of motion, I would adjourn the application to enable the respondent to be heard in relation to the matters contained in the notice of motion and its letter of 1 February 1996.

This is the return date on that adjournment.  The applicant seeks that the terms of settlement be enforced and judgment be entered on the agreement for the amount of settlement.  I am satisfied that I am able to exercise the inherent powers of the Court to conduct and manage its own affairs, including the power to enforce settlements of proceedings in matters before it.  In that regard I concur with and respectfully refer to the decision of Judicial Registrar Murphy in Anthony Allen v Seaford Screens Pty Limited, decision number 46 of 1996, dated 14 February 1996.

Further or alternatively, this claim is a claim in the accrued or associated jurisdiction claim arising from the circumstances of the termination of employment, and is able to be proved before me and dealt with accordingly.  Having regard to the affidavit material which has been filed in these proceedings on the notice of motion, and in particular the affidavit of Alison Anne Hewitson and the associated terms of settlement which are exhibit AAH1 to that affidavit sworn on 19 December 1995, I am satisfied that terms of settlement were entered in these proceedings, and that those terms of settlement provided for various moneys to be paid to the applicant in the proceedings,  those moneys in total being the sum of $2,300.00.

I am further satisfied that no such payment has been made to the applicant, and that the terms of settlement have therefore been breached by the respondent.  The terms of settlement further provided at paragraph 5 of those terms for interest to accrue upon the balance of that amount on and from the date due,  and, further, that costs of the proceeding for the period commencing the day after the terms of settlement be a matter which may be pursued by the applicant.

In these proceedings such applications have been made, and I am satisfied that an order for costs ought be made against the respondent, and that that order be an order for party/party costs in the proceedings.

Pursuant to Order 62 rule 1(c)  of the Rules of Court I order and direct that the Registrar determine the amount of costs in the proceedings in accordance with the procedure set out in rule 42 of Order 62 of the Federal Court Rules.

I also propose to accede to the application that interest be awarded in these proceedings pursuant to the Rules of Court at the rate set by the Rules of Court. Interest will be an amount in the sum of $244.24, that amount having been calculated for the period from 19 April 1995 to the date of this hearing this day, a period of 323 days. 

This court orders and directs that in the proceedings judgment will be entered for the applicant on the terms of settlement.

I further note in the course of these reasons for decision that I am satisfied that the respondent had proper notice of the proceedings listed for hearing this day, and that every opportunity has been accorded to the respondent to appear in these proceedings and be heard in relation to the matters contained in the notice of motion and any other matter that the respondent might wish to raise in the Court.

The orders of the Court in this proceeding will be:

1. that judgment be entered for the applicant on the terms of settlement reached between the parties on 18 April 1995 as set out in exhibit AAH1 to the affidavit of Alison Anne Hewitson sworn 19 December 1995;

1. that an order for interest be made in the sum of $244.24;

1. that the respondent pay the applicant's party/party costs from the date settlement was reached to the date of today's hearing including this day, and that such costs be settled and determined pursuant to Order 62 of the Rules of Court by the Registrar of the Court.

I certify that this and the preceding three (3) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson delivered ex tempore
and revised from the transcript.

Associate:
Dated:   8 March 1996     

APPEARANCES

Solicitors for the applicant:  Gill Kane & Brophy
Counsel appearing for the applicant:                   Mr L W Maher

No appearance for the respondent

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2547 of 1994

B E T W E E N:

SASHA BENASSI
Applicant

A N D

GOURMET H.D. SERVICES PTY LTD
Respondent

MINUTES OF ORDERS

8 March 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. judgment be entered for the applicant on the terms of settlement reached between the parties on 18 April 1995 as set out in exhibit AAH1 to the affidavit of Alison Anne Hewitson sworn 19 December 1995;

1. an order for interest be made in the sum of $244.24;

1. the respondent pay the applicant's party/party costs from the date settlement was reached to the date of today's hearing including this day, and that such costs be settled and determined pursuant to Order 62 of the Rules of Court by the Registrar of the Court.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations

Court Rules

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - settlement - breach of terms of settlement - application to reinstate proceedings and enforce terms of settlement - inherent powers of the Court to conduct and manage its own affairs - accrued jurisdiction - COSTS   

Industrial Relations Court Rules 1988, O. 62 r. 1(c) 

Anthony Allen v Seaford Screens Pty Limited  unreported, Industrial Relations Court of Australia, Murphy JR, 14 February 1996

SASHA BENASSI  v  GOURMET H.D. SERVICES PTY LTD
VI 1234 of 1995

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  8 MARCH 1996