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Staal and Tupene and Western Sydney Area Health Service [2004] NSWIRComm 325 (4 November 2004)

Staal and Tupene and Western Sydney Area Health Service [2004] NSWIRComm 325 (4 November 2004)

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03/18/2014

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New South Wales Industrial
Relations Commission
[Index] [Search] [Download] [Context ] [Help]
Staal and Tupene and Western Sydney Area Health
Service [2004] NSWIRComm 325 (4 November 2004)

Last Updated: 16 November 2004
NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION
CITATION : Staal and Tupene and Western Sydney AreaHealth Service[2004]

NSWIRComm 325

FILE NUMBER(S): 6816, 6817
HEARING DATE(S): 25/06/2004
DECISION DATE: 04/11/2004

PARTIES:
APPLICANTS
Allen Staal
Matu Tupene
RESPONDENT
Western Sydney AreaHealth Service
JUDGMENT OF: Sams DP
LEGAL REPRESENTATIVES

APPLICANTS
Ms C Howell of Counsel
SOLICITOR

Mr J Hendry, Geoffrey Edwards & Co
RESPONDENT
Mr J Murphy of Counsel
Instructed by Mr C Brown of Western Sydney AreaHealth

Service

CASES CITED: Bankstown City Council v Paris (1999) 93 IR 209
Cornell v Titley [2002] NSWIRComm 326
Four Sons Pty Limited v Sakchai Limsiripothong (2000) 100 IR 400
IGA Distribution Pty Ltd and Moses No. 3 [2003] NSWIRComm 230
Justin Thomas and Christie Direct Pty Ltd [2003] NSWIRComm 25
Passas v Skouloudis Group Pty Ltd t/as O'Kosmos [2001] NSWIRComm 124
Timothy Fox v GIO Australia [2002] NSWIRComm 318
Tuholi Pty Ltd v Caltex Australia Petroleum Pty Limited [2001] NSWIRComm 7
Weisser v Spur Group Pty Ltd [2003] NSWIRComm 79
Van Huisstede v Commissioner of Police (No 2) (2001) 106 IR 56
Youssef v Western Sydney AreaHealth Service No. 3 [2004] NSWIRComm 124
LEGISLATION CITED: Industrial Relations Act 1996

Workplace Video Surveillance Act 1998
JUDGMENT:
-5 -
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
CORAM: SAMS DP
4November 2004
Matter No IRC02/6816

Allen Staal and Western Sydney Area Health Service
Matter No IRC02/6817
Matu Tupene and Western Sydney Area Health Service
Applications re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996

DECISION (on costs)
[2004] NSWIRComm 325
1 In a decision of 10 March 2004 [2004] NSWIRComm 27, the Commission as presently
constituted, made orders pursuant to s89(1), (3), (4) and (6) of the Industrial Relations
Act1996 ('the Act') in favour of nine dismissed security officers ('the applicants')

formally employed by Western Sydney AreaHealth Service ('the respondent'). The
effect of those orders was to reinstate the nine applicants to their former positions without
loss of continuity ofservice and with the payment of lost remuneration.

2 During submissions in the substantive proceedings, MsHowe ll of counsel,
foreshadowed an application for costs, pursuant to s181(2)(c) of the Act, would be made
in the event her two clients, Mr Matu Tupene and Mr Allen Staal were successful in the
proceedings. I observe that the remaining seven applicants were represented by their
Union, theHealth and Research Employee's Association (as it was then known). No
application for costs was made by the Union subsequent to the decision of the
Commission.

3 In the orders made on 10 March 2004, the Commission directed that any application for
costs should be made by way of notice of motion within 21 days.

4 Solicitors for Mr Staal and Mr Tupene, Geoffrey Edwards and Co, subsequently filed a
notice of motion and accompanying affidavit on 30 March 2004. The notice of motion
was expressed as follows:

1. An order pursuant tos181(2)(c) of the Industrial Relations Act 1996 that the
Respondent pay the Applicant's costs, including Counsel's fees, on an indemnity basis.
5 The uncontested affidavit of John Justin Hendry, Solicitor for the applicants was in the

following terms:
1. I am the Solicitor on record for the Applicant.
2. The Applicant filed the Application for Relief in Relation to Unfair Dismissal on 29

November 2002. In that Application, the Applicant provided details of his legal
representative, Geoffrey Edwards & Co.

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