State of New South Wales v The Broken Hill Town Employees' Union on behalf of employees

[2022] NSWSC 251

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v The Broken Hill Town Employees’ Union on behalf of employees [2022] NSWSC 251

Hearing dates:

10 March 2022

Decision date:

11 March 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

1. The Local Court proceedings number 2021/262357 be stayed under s 142(1) of the Civil Procedure Act 2005 (NSW) until the First and Second Plaintiffs’ summons filed 14 February 2022 is determined;

2. Costs of the motion be costs in the cause.

Catchwords:

PROCEDURE – stay of proceedings – application to stay proceedings in Local Court – pending application to transfer proceedings to Supreme Court

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 142(1)

Category:

Principal judgment

Parties:

State of New South Wales (First Plaintiff)
Far West Local Health District (Second Plaintiff)
The Broken Hill Town Employees’ Union on behalf of employees (Defendant)

Representation:

Counsel:
Mr M Foran (Plaintiffs)
Mr A Knox; Ms R Ferry (Defendant) (by leave)

Solicitors:
Maddocks (Plaintiffs)

File Number(s):

2022/45861

Judgment

1. By notice of motion filed on 24 February 2022 the plaintiffs seek an order that certain Local Court proceedings between the parties be stayed pursuant to s 142(1) of the Civil Procedure Act 2005 (NSW). The nature of those proceedings, which are being heard before the Chief Industrial Magistrate sitting at Broken Hill, is a claim by the Broken Hill Town Employees’ Union (“the defendant”) for the recovery of a sum of money said to be owed by the plaintiffs as a consequence of underpayments of 40 casual and permanent part-time employees.

2. By a summons filed on 14 February 2022, the plaintiffs sought orders to transfer those proceedings to this Court, that the matter be allocated to the Administrative and Industrial Law list in the Common Law Division and that the matter proceed by way of pleadings. That application is opposed and a date for hearing of the summons has been fixed, being 6 July 2022.

3. On 18 February 2022, at a mention of the matter in the Chief Industrial Magistrate’s Court, the plaintiffs sought a stay of those proceedings pending the determination of the orders sought in their summons. That application was refused by Industrial Magistrate Trad, who stated that, in her Honour’s view, that was a matter for this Court. Consequently, the application before this Court seeks that the proceedings be stayed until the summons is determined.

4. The practical effect of a stay would be that the plaintiffs in the notice of motion would be relieved of an obligation to comply with a timetable that was set in the Chief Industrial Magistrate’s Court for the filing of a defence by a date in May.

5. The essential basis of the opposition to the application for a stay by the defendant is that the transfer of proceedings would unnecessarily prolong the case and cause the defendant to incur unnecessary legal costs. The first of those issues, in my view, while regrettable, since the disputed wages date back to 2013, is a matter that is relevant to the orders sought in the summons but not to the application for a stay of the proceedings below. The second issue is of considerable significance to the defendant, since the union only has approximately 350 members and therefore is of limited financial means. Throughout the matter in the Industrial Magistrates Court and in this Court, it has been assisted by Andrew Knox, the defendant’s part-time industrial officer, who is not a legal practitioner. I granted leave to Mr Knox to speak on behalf of the defendant.

6. I am of the view that the application for a stay of the proceedings below should be granted, because to do otherwise would thwart the proceedings that were commenced by the filing of the summons. Whether the proceedings should be transferred is a matter for the court that hears that application.

Orders

7. Accordingly, I make orders as follows.

1. The Local Court proceedings number 2021/262357 be stayed under s 142(1) of the Civil Procedure Act 2005 (NSW) until the First and Second Plaintiffs’ summons filed 14 February 2022 is determined;

2. Costs of the motion be costs in the cause.

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Decision last updated: 11 March 2022