AML Group Pty Ltd v Clancy, Patrick

[1997] FCA 849

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - review of decision of judicial registrar - failure of respondent to comply with orders of judicial registrar - whether application for review should be stayed on ground of contempt

Workplace Relations Act 1996 (Cth)

AML GROUP PTY LTD v PATRICK CLANCY

NI 2325 of 1996

Madgwick J
Sydney
1 August 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NI 2325 of 1996
)
GENERAL DIVISION	)

BETWEEN:	AML Group Pty Ltd Applicant
AND:	Patrick Clancy Respondent

JUDGE(S):	MADGWICK J
PLACE:	SYDNEY
DATED:	1 AUGUST 1997

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:   In this matter I find that the applicant for review, AML Group Pty Ltd, is in contempt of the order of the judicial registrar for the reinstatement of Mr Clancy. 

It was indicated by a solicitor on behalf of the company that the company had no intention of complying with that order and had no intention of seeking a stay of that order until the outcome of the application for review should be known.  In the context, the inference is irresistible that the reason for not seeking a stay was that it was thought there was scant chance of success with such an application.  Such alleged facts as were put to me today in evidence by Ms Cutmore, a director of the company as to the company’s inability to reinstate Mr Clancy were apparently rejected by the judicial registrar and can hardly be said to amount to a reasonable explanation as to why the orders have not, until now, been complied with.

It is said that the company is impecunious but there was not a single piece of paper put before the Court to make that out.  Until recently the company was legally represented, and one infers on a usual and proper basis as to fees.  Ms Cutmore is one of two directors of the company and this Court was informed that “the directors” of the company were involved in the decisions not to apply for a stay nor to abide by the orders of the judicial registrar.  It would be wrong for the Court to act upon the unsubstantiated word of Ms Cutmore.

In the circumstances, it seems to me that the company is in contempt of the Court and that the application for review should be stayed until such time as that contempt be purged.  Application to purge the contempt may be made at any time on seven days notice. 

The respondent to the appeal, Mr Clancy, is given leave to file and serve any application that he may be advised in relation to further relief in respect of the said contempt on account of his costs thrown away by the review proceedings to date, and/or by sequestration of the assets of the company and/or of any of its directors.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:             1 August 1997

Representative for the Applicant:	M Cutmore
Counsel for the Respondent:	R Moore
Solicitor for the Respondent:	Blattman White & Associates
Date of Hearing:	1 August 1997
Date of Judgment:	1 August 1997