Adele Crane v Spanline Weatherstrong Building Systems Pty Ltd

[1995] IRCA 414

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
  VI 2500 of 1995

B E T W E E N:

ADELE CRANE
Applicant

A N D

SPANLINE WEATHERSTRONG
BUILDING SYSTEMS PTY LIMITED
Respondent

REASONS FOR DECISION - DELIVERED EX TEMPORE

23 August 1995  PARKINSON JR

This is an application by way of notice of motion filed on 14 August 1995, seeking to amend the applicant’s claim by adding a claim in the associated jurisdiction of the court for damages for breach of contract. This claim is one in excess of $10,000.00, and thus if such leave to amend were granted, the Court as presently constituted would be precluded by section 376 and order 74 rule 2(a) from hearing the claim.

I am informed by counsel for the applicant that the notice of motion before me this day was foreshadowed on a number of occasions, both before the Court at directions, and with the respondent in writing. 

I am further informed that at directions a request was made that the matter be referred to a judge. It is to be noted that no application was made pursuant to section 378 of the Act. This is not the manner in which such referrals are determined, and the rules of Court together with the Act, in particular section 378, provide clearly for the appropriate steps to be taken. Further, at the time of the directions there was no claim in the accrued jurisdiction formulated, and the Judicial Registrar concerned proceeded, it can only be assumed, on the basis of the application which was before him on that day, being an application pursuant to section 170EA of the Act.

The application for leave to amend has been made in a context where no party, in particular the applicant, has turned their mind to the jurisdictional limitations arising. This is clear from the submissions made this day, and from the notice of motion filed which made itself no application pursuant to section 378 of the Act. Whilst, contrary to the submissions of the respondent, I am satisfied that the claim in contract is one which is of the type contemplated by section 430 of the Act, and that in this case the claim is based upon a similar substratum of fact, nevertheless I am not convinced that in the circumstances it is convenient or appropriate to allow the amendment to proceed in the accrued jurisdiction. This is because this matter is listed for two days and the parties, in particular the respondent's witnesses, have travelled from interstate and are present and ready to proceed in relation to the section 170EA application. My decision in relation to the application for leave to amend is that the application for leave to amend made pursuant to the notice of motion filed on 14 August 1995 be refused. It is my intention to now proceed to hear the claim pursuant to section 170EA of the Act.

I certify that this and the preceding one (1) page
is a true copy of the reasons for decision of
Judicial Registrar Parkinson delivered ex tempore
and revised from the transcript.

Associate:
Dated:  23 August 1995

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - PRACTICE AND PROCEDURE - application to amend application by adding claim in the associated jurisdiction

Industrial Relations Act 1988, ss. 376, 378, 430;
o.74 r.2

ADELE CRANE v SPANLINE WEATHERSTRONG BUILDING SYSTEMS PTY LTD
VI 2500 of 1995

Before:           PARKINSON JR
Place:              MELBOURNE
Date:              23 AUGUST 1995