ASPLIN and ST BARBARA MINES LTD
[1997] IRCA 79
•26 Feb 1997
DECISION NO:79/97
CATCHWORDS
INDUSTRIAL LAW -. change of venue of HEARING
Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988) Ss 170EE, 369, 478,
Rules of Court, Order 30 Rule 6(1) and 6(2)
Andrew and Frewen Pty Limited v Arrow Limited, unreported decision of 6 June 1990, judgment number 247 of 1990
National Mutual Holdings Pty Limited and others v Century Corporation and another (1988) 88 ALR 434
Queensland v J.L. Holdings Pty Limited (1997) 141 ALR 353
ASPLIN and ST BARBARA MINES LTD
WI 1479 of 1996
Before : RITTER JR
Place : PERTH
Date of Judgment : 26 FEBRUARY 1997
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1479 of 1996
B E T W E E N:
PAUL LEONARD ASPLIN
First Applicant
A N D:
AUSTRALIAN WORKERS UNION
Second Applicant
A N D:
ST BARBARA MINES LTD
Respondent
MINUTE OF ORDERS
26 FEBRUARY 1997 PERTH RITTER JR
THE COURT ORDERS THAT:
The respondent's application for a change in the venue of the trial to enable part of the trial to be heard in Meekatharra be allowed on conditions to be contained in further orders of the Court.
There be liberty to apply.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1479 of 1996
B E T W E E N:
PAUL LEONARD ASPLIN
First Applicant
A N D
AUSTRALIAN WORKERS UNION
Second Applicant
A N D:
ST BARBARA MINES LTD
Respondent
REASONS FOR DECISION
26 FEBRUARY 1997 RITTER JR
EX TEMPORE JUDGMENT
(Revised from the Transcript)
INTRODUCTION
This is an application by the first applicant pursuant to section 170EA of the former Industrial Relations Act, now called the Workplace Relations Act 1996 (the "Act"). The application commenced before me on Monday 24 February 1997.
The respondent made an application on 25 February 1997, which was foreshadowed on Monday 24 February 1997 under section 478 of the Act. The application is that the Court sit in Meekatharra to hear 16 or 17 of the respondent's witnesses. The basis of the application is the suggested cost to the respondent of the hearing taking place in Perth as opposed to Meekatharra. The first and second applicants oppose the respondent's application.
There are a number of materials that have been filed before the Court. The respondent filed the following affidavits:
Affidavit of Ms O'Brien dated 20 February 1997;
Affidavit of Mr Padberg dated 20 February 1997;
Further affidavit of Ms O'Brien dated 21 February 1997;
Affidavit of Ms Marton dated 24 February 1997;
Affidavit of Mr Suckling dated 25 February 1997.
The first applicant also provided me with materials in the form of two reports from the surgeon, Mr Sneddon, both dated 25 February 1997. These reports were handed to me by Mr Lourey from the bar table without objection by the respondent.
THE POWERS OF THE COURT
Section 369 of the Act states:
"Sittings of the court are to be held from time to time as required at the places at which the registries of the court are established, but the court may sit at any place in Australia or a Territory."
In addition to that, section 478 says:
The court or a judge may at any stage of a proceeding in the court direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions, if any, as the court or judge imposes."
Order 30, rule 6, subrule (1) and (2) of the Court Rules provide that:
"Rule 6 Place of Trial
6(1)[Proper place] Subject to subrule (2), the place of trial of a proceeding is to be the proper place.
6(2) [Other than proper place] On the application of a party or of its own motion, the Court may direct that the trial, or part of the trial, of a proceeding be held at a place other than the proper place."
The expression "proper place" is defined in order 1, rule 3 to mean, in relation to any proceeding:
(a)where there has been no transfer, the place at which the proceeding was commenced; and
(b)where there has been a transfer, the place to which the proceeding was transferred.
Therefore in relation to this matter, as the proceeding was commenced at Perth, at the Perth registry, the proper place is Perth. Therefore until the Court exercises any of its powers to change the venue of the trial, the trial is to take place in Perth.
THE TEST TO APPLY
In relation to the appropriate test to apply in considering the application, I have been assisted by judgments of the Federal Court in relation to the similar Federal Court power. The Full Court of the Federal Court in National Mutual Holdings Pty Limited and others v Century Corporation and another (1988) 88 ALR 434 considered the power of the Federal Court to change venue at some length. At page 441, the Full Court said that:
"The power conferred on the court or a judge by section 48 of the Federal Court Act is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the court were to circumscribe the general power conferred by section 48 with inflexible rules or impose inelastic constraints upon its exercise. As the power may be exercised subject to conditions, the court or a judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases. The power conferred by section 48 recognises the national character of this court. The factors which the court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The court must weigh those factors in each case. Residence of the parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the court itself are some of the factors that may be relevant in particular circumstances. The balance of convenience will generally be a relevant consideration but not necessarily determinative of each case."
The Court continued on page 442 by indicating that:
"There was no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere."
The Court indicated, however, that:
"A court would need to be satisfied after considering all relevant matters that there was sound reason to direct the proceeding be conducted or continued elsewhere."
The starting point, to the Court, was to ask, given the proceeding commenced at a particular place, why should it be changed. Further on page 442, the court said that:
"The balance of convenience is important but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably, bearing in mind the interest of all the parties, the ends of justice in the determination of the issues between them and the most efficient administration of the court. It cannot and should not, in our opinion, be defined more closely or precisely."
The views of the Full Court in the National Mutual case were cited with approval in the later decision of the Full Court of the Federal Court in Andrew and Frewen Pty Limited v Arrow Limited, unreported decision of 6 June 1990, judgment number 247 of 1990. In that case, the court reiterated the test set out in the National Mutual case and counsel before the Federal Court on that occasion did not seek to persuade the Court that the tests suggested in the National Mutual case were incorrect.
Both parties in this case did not disagree with the view that I suggested to them during argument that the test set out in those two cases were appropriate to the application before me.
Ms O'Brien, for the respondent, made one observation in relation to those cases which was that they deal with the Federal Court where the Federal Court is generally a costs jurisdiction, whereas this Court is generally a no-costs jurisdiction. In my opinion, that is a relevant point to make about those cases and how they apply to an application before this Court. What it means, in my opinion, is that the costs to individual parties has perhaps greater importance than in an application before the Federal Court.
Ms O'Brien also drew to my attention the recent decision of the High Court in Queensland v J.L. Holdings Pty Limited (1997) 141 ALR 353.
At page 357 of the judgment of Dawson, Gaudron and McHugh JJ, their Honours said, in the context of considering an application which brought into focus case management principles, that
"It should always be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice. No principle of case management can be allowed to supplant that aim."
As the High Court observes, the ultimate aim of a court is the attainment of justice. It is the application of that principle when there are competing interests, claims, factors and issues, which causes difficulty. This application before the Court very much brings such matters to the fore.
THE FACTS
The background to the application is set out in the affidavit of Ms O'Brien dated 20 February 1997, which I will paraphrase. The first applicant's substantive application came before District Registrar Richardson on 8 January 1997 for directions. One of the directions made concerned the place of trial. There was an order made on that day that the trial would commence in Meekatharra. There was also discussion about some witnesses who were in Perth giving evidence in Perth, whereas other witnesses, being the majority of the witnesses, giving evidence in Meekatharra. There was a letter from the Court on 8 January to the solicitors for the respondent confirming that the place of trial was to be Meekatharra. There was later contact by an officer of the Court to Ms O'Brien and, as I have heard from Mr Lourey from the bar table without objection, to him as well, that the trial of the matter was not going to take place in Meekatharra but in Perth. This is deposed to in paragraph 9 of the affidavit of Ms O'Brien and she gives the date of this communication as being 14 January 1997. It is clear, however, that no order was made to that effect at that time. The respondent's solicitors wrote to the Court on 30 January 1997 expressing their concern about a potential decision being made about a change of venue of the hearing. There was a telephone directions hearing on 3 February 1997 before Richardson DR. The result of that telephone directions hearing was that the place of the trial was changed by order of the Court from Meekatharra to Perth. The affidavit of Ms O'Brien deposes that the reason given by the District Registrar for making that decision, at least in part, was that, "Judicial registrars were not travelling" because "funds have been cut". According to Ms O'Brien, the District Registrar went on to say that:
"It had always been a privilege, not an entitlement, that the Court travel and that the decision was a political one and not one of the Court."
Ms O'Brien deposes in her affidavit that she made further submissions to the District Registrar on the issue but that the District Registrar reiterated her decision that the hearing would take place in Perth. As I have said, that decision occurred on 3 February 1997. The respondent did not immediately seek to review that decision or bring the matter before the Judicial Registrar who would hear the case to apply for a change of the venue.
The affidavit of Ms O'Brien, sworn 21 February 1997, deposes to what the respondent did in relation to the matter after 3 February 1997. This included obtaining an opinion from senior counsel as to whether there were any grounds for review of the decision of the District Registrar. The advice of senior counsel was received on 13 February 1997 and instructions to institute what is described as an appeal in the affidavit of Ms O'Brien, was received on 14 February 1997. The documents were drafted and forwarded to senior counsel for settling on 17 February 1997. Advice was given to the first applicant's representative that the respondent was seeking a review. Documents were filed with the Court on 20 February 1997. As the affidavit of Ms O'Brien deposes, the documents filed with the Court contain the error that a review was being sought by a Judicial Registrar rather than a Judge of the Court. There were also administrative complications such that the matter could not practically be listed before a Judge prior to the commencement of the hearing on Monday 24 February 1997.
At the commencement of the hearing, Ms O'Brien sought an adjournment of the matter so that a Judge could hear the review. However, I indicated in my view that as I had jurisdiction under section 478 to order a change of venue, there was no purpose to be served in adjourning the application generally. After conferring with senior counsel during the course of 24 February 1997, Ms O'Brien did not submit this view was in error and therefore the change of venue application was made before me. In my opinion, it would have been advisable for the respondent to try and make the application earlier than it did, because it may have involved less disruption to the hearing of the matter. However, there is no doubt that the application is one which is properly brought in the sense that it is an application with substance.
In my opinion, the way in which the issue was first raised with the parties by the Court was also somewhat unfortunate. Given the Court had made an order that the hearing was going to take place in Meekatharra, it should in my view, if it was considering a change of venue, have simply listed the matter before the District Registrar for the District Registrar to convey this to the parties and hear submissions on the matter before making any decision. The way in which the matter was handled administratively by the Court has given the impression to the parties that a decision was made by the Court prior to the parties having the opportunity to be heard in relation to the matter.
THE ISSUES
As I have said earlier, the primary reason why the respondent makes this application is due to the cost to it if the matter were to proceed wholly in Perth. The costs that the respondent relies on are set out in the affidavit of Mr Padberg, sworn on 20 February 1997. In paragraph 4, Mr Padberg estimates the cost of bringing 17 witnesses to Perth from work and residence in Meekatharra, to involve airfares of $8840, accommodation of $1600, meals of $840 and travel of $400. In relation to these costs, I was advised by Ms O'Brien from the bar table that with respect to accommodation, the respondent has allowed $100 per night. With respect to meals, the respondent has allowed $50 for somebody staying overnight and $20 for somebody who was here for the day, and that the travel amount refers to taxi fares. Mr Lourey in his submissions pointed to the fact that some, if not many, of the employees coming to Perth may be able to stay with families or relatives and so there may not be need to pay the total amount of accommodation referred to in Mr Padberg's affidavit. In paragraph 7, Mr Padberg says that there is an additional cost of paying wages lost by each witness, which he estimates at $7300. As I understand it, the respondent's position is that it will be obliged to pay its employees wages whilst they are attending at Perth to give evidence. As I understand it, the total cost of this amount is $7300. The cost of $7300 does not refer to the difference between the amount that the respondent would have to pay its employees if they attended at Perth as opposed to Meekatharra. Therefore, to some extent, the figure of $7300 is an inflated figure.
Finally, in paragraph 8, Mr Padberg refers to the fact that because of the nature of the respondent's business, it will be necessary to engage contractors to perform work usually performed by certain witnesses and that the estimated cost of that is $2000.
In relation to the wages issue that I mentioned earlier, I was advised by Ms O'Brien that she thought that seven of the respondent's witnesses would be of an hour's duration or less so that the gap between the time that they would spend if giving evidence at Meekatharra as opposed to them having to travel to Perth to give evidence would be significant. I was also told that the minimum wage of any employee that would be giving evidence would be $250 per day.
The total amount of the costs specified in Mr Padberg's affidavit is $20,980. As I have said, I regard that figure as potentially inflated for the reasons that I have referred to. However, it also should be said that Mr Padberg says in his affidavit that he regards the assessment of costs made as conservative. This is not something to which I give any great weight because this assertion is made without any particularisation.
There are also some potential savings not factored into Mr Padberg's affidavit if the matter is heard in Meekatharra rather than Perth. I was advised by Ms O'Brien that the clerk assisting her would not attend at the hearing of the Court if it were to take place in Meekatharra, so that therefore there may be a potential saving to the respondent in not having to pay for the costs of her time (assuming that it is paying for the costs of her time) if the hearing took place in Meekatharra as opposed to Perth. Another issue is the question of the tax deductibility of the items referred to in Mr Padberg's affidavit. It would appear that many of the items, if not all of them, could be claimed properly by the respondent as a tax deduction so that therefore the long-term cost to the respondent may be significantly less than $21,000. My overall view, therefore, is that the figure of $21,000 is a somewhat inflated figure. However, I accept that there is a substantial amount in gross terms which the respondent will have to pay, at least initially, and that this amount could at least be seen to be $15,000 or in that vicinity, of which some or all may be tax deductible.
I mentioned to the respondent on Monday 24 February 1997 that it seemed to me that merely saying the cost to the respondent was $21,000 did not convey the full picture of costs, because I had no information before me on the economic status of the respondent such that I could judge what $21,000 meant to the respondent. In response to these comments, the affidavit of Mr Suckling was filed on 25 February 1997. Mr Suckling annexes to his affidavit the half-yearly financial statements of the respondent for the half year to 31 December 1996. In paragraph 3, Mr Suckling says that there has been no significant alteration to the best of his knowledge, information and belief since 31 December 1996. Mr Suckling is the Group Operations Manager of the respondent and could be expected to well know these matters.
At page 13 of the annexure to Mr Suckling's affidavit, it states that the pre-tax operating profit of the respondent for the six months to 31 December 1996 was $5.7 million and that the after-tax profit was $3.1 million. It says that as a current asset, the cash of the respondent is $9.2 million. It can therefore be seen that the respondent company is one of substantial means.
The figure of $21,000 is about 0.2% of the cash asset held by the respondent. Further, $21,000 is merely 0.37% of the $5.7 million pre-tax profit for the six months to 31 December 1996. To give this some scale, if one were to compare that to the gross wages of a person earning $35,000 per annum or $17,500 gross for six months, the relative amount to that person would be $64.75. Therefore, to the respondent, given the respondent's means, the amount involved in a relative sense is a small one.
When discussing that issue with Ms O'Brien she made a number of criticisms of such an approach. The first was that even though the amount may be small in relative terms to the respondent, the amount still has to be paid out.
Secondly, Ms O'Brien submits that to take this into account would be to treat the economically well off differently from others. The short answer to that is yes, it does, but the more important question is whether this can be justified.
Thirdly, Ms O'Brien said that the respondent could not be expected to write off $21,000 every time it faces an unlawful termination case in this jurisdiction. In my opinion that submission was speculative and I do not pay any regard to it.
Fourthly, Ms O'Brien said that there was nothing to say that the second applicant (the "AWU") or the first applicant's financial situation was not sufficiently adequate to meet any costs of travelling to Meekatharra, particularly with respect to the AWU.
As a result, I made an inquiry of Mr Lourey on these issues with respect to the first applicant and the AWU. I will return to those details later. Overall Ms O'Brien submitted that to have the case proceed in Perth wholly would provide an unfair and unjust burden upon the respondent. I should mention in relation to the respondent's position and their submissions that I accept that aside from economic considerations, there are other needs of the respondent that should be taken into account. In particular, the disruption generally to the workers and work force of the respondent and potentially to production of the respondent. This may not be insignificant given the number of witnesses involved.
I also accept that the respondent is not, by trying to have part of the matter heard in Meekatharra, seeking to delay the hearing of the action. The respondent has advised through the affidavit of Ms Marton that the court in Meekatharra is available for hearing from 10 to 15 March 1997. Ms O'Brien submitted that the witnesses in Meekatharra could be disposed of in that time frame. Further, the Court has already set aside time for the hearing of this matter in Perth on those dates and therefore that could be accommodated. Therefore, I accept that the respondent is not trying to delay the hearing by the application that it makes.
Another matter that is significant in my opinion is that this is generally a no-costs jurisdiction, where if compensation is considered and awarded generally the maximum amount which can be ordered is about $32,000. For one of the parties to start a litigious dispute about potentially $32,000 or less by spending costs of $15,000 to $20,000 on witness disbursements is a significant matter. The Court should, consistent with the principle of the attainment of justice, try to ensure that the playing field and the stakes played for are even, consistent with its obligation to the proper administration of the Court and all other relevant circumstances.
I turn now to the question of the first applicant's opposition to the application. The first point that the first applicant makes is that the first applicant could not attend a hearing of the Court in Meekatharra from 10 to 15 March 1997 because of the first applicant's current medical condition. The first applicant had an operation to his leg on 23 January 1997 which involved a breaking and realignment of the leg in two places. This was an elective surgery but one which the first applicant decided to undergo at that time in reliance on the advice of Mr Lourey, accurate as it turned out, that the application would not be listed to be heard in Meekatharra. Mr Lourey gave this advice after receiving the advice of the court officer referred to earlier.
As I have said, I have been provided with two reports from Mr Sneddon both dated 25 February 1997. The first states that Mr Asplin is undergoing correction of a deformity of his leg and this is being done with an external fixation frame which requires adjustment several times a day through to the end of this week. The adjustments are painful and he requires regular strong analgesics to control the pain. Whenever his lower limb is dependent, the swelling becomes a problem and increases the amount of tissue oedema and pain in his lower leg. His lower limb needs to be kept elevated as often as possible.
Mr Sneddon says:
"I do not believe it is appropriate for him to travel to Meekatharra and having his leg dependent for the long periods of travelling involved would increase quite markedly the pain levels experienced in his lower limb."
That report was discussed in the morning of 25 February 1997 and a further report was obtained that afternoon. This report shortly states that:
"This letter is to certify that it is my expectation that Mr Paul Asplin will have the external fixation frame removed from his leg in approximately 6 weeks time and after that time it will be quite feasible for him to travel to Meekatharra."
There are some gaps in the reports of Mr Sneddon, but it seems to me that one can infer from his reports that his medical opinion is that the first applicant should not travel for a period of at least six weeks. Six weeks from 25 February 1997 is 8 April 1997. In my opinion it would be inappropriate of the Court to make any order contrary to Mr Sneddon's advice such that the first applicant would have to attend Meekatharra in the period prior to that time. Therefore, if one is to allow the respondent's application, there will be a delay to the hearing of the application to at least 8 April 1997. I will return to that matter later.
The second issue that the first applicant referred to is the question of his witnesses. Mr Lourey advised me that the first applicant has eight witnesses of whom one or two will be in Meekatharra. The balance will give evidence in Perth, except for one witness who is interstate and who will be giving evidence by video link. Mr Lourey advised me of the first applicant's concern that if there is a delay in the hearing of the matter, the witnesses who are currently in Perth will disperse. This assertion was based on the fact that these people are currently not employed, but are looking for work in the mining industry where if they are successful they will obtain the work in more remote locations.
This would increase the cost to the first applicant in bringing such witnesses to Perth and the first applicant would have to balance whether they be brought to Perth against the question of costs and the imposition on individual witnesses and their subsequent employers. However, this issue was ameliorated entirely in my opinion by the respondent advising me that it would agree to all Perth-based witnesses, other than Mr Asplin, being interposed to give evidence either this week or in the week commencing 10 March 1997, if this is what the first applicant wished.
The third issue is the question of costs to the first applicant if the matter were to proceed in Meekatharra. The first applicant would be saved the cost of one or two witnesses travelling from Meekatharra to Perth, potentially, but would also of course have extra costs. Those costs would be Mr Lourey and the first applicant attending at the court in Meekatharra for a week, including their air fare, accommodation and meals. I am advised that the cost of a return flight to Meekatharra is about $570 and that appropriate accommodation there costs about $100 per night at a motel. As I said, there is also meals in addition to that.
Mr Lourey advised me, and it does not seem to be in contention, that the first applicant is not currently working. Mr Lourey also advised me that the AWU and the first applicant had not yet decided whether the AWU would pay any or all of Mr Asplin's disbursements. After some discussion about this issue and Ms O'Brien being able to take instructions on the matter, the respondent made the offer that if the Court were to order that the hearing take place in Meekatharra to hear the Meekatharra-based witnesses, the respondent would accept a condition that it pay the airfare and accommodation (which I took as including an allowance for meals for Mr Asplin) in Meekatharra.
This would ameliorate the costs to the first applicant if the hearing were to proceed in Meekatharra. In my opinion, the respondent's position in relation to that aspect of the matter was a show of good faith.
In relation to the costs for the AWU and the first applicant, Mr Lourey gave me what I take as a fairly off-the-cuff view that the costs, in terms of disbursements, would be about $2,500 if there was travelling to Meekatharra and accommodation for one week. If the respondent is to meet half of that cost then there will remain the cost of $1,250 to the AWU.
Mr Lourey made mention of the financial concerns of the AWU at present. To some extent there has been publicity on this issue, but the detail as to the financial concerns of the AWU was not gone into, nor is the detail of the financial concerns of the AWU a fact sufficiently notorious for me to take judicial notice of. It may be, however, that the burden upon the AWU of travelling to Meekatharra is greater than that upon the respondent in having its witnesses travel to Perth to give evidence. However, it is difficult to come to a firm view on that on the information available.
Ms O'Brien pointed to the fact that the AWU was travelling to Meekatharra for another hearing in the not too distant future, so the AWU is certainly sufficiently viable to do that in an appropriate circumstance. Mr Lourey, indeed, did not take issue with that and did not suggest that the AWU was about to fall over or abandon Mr Asplin if part of the hearing took place in Meekatharra.
One issue that particularly concerns me, and which Mr Lourey referred to, to some extent, is the fragmentation of the proceedings. If the respondent's application is to be acceded to, there will be a number of stages of the hearing of the matter.
Firstly, there will be the hearing this week and the week commencing 10 March in Perth. The purpose of these hearings will be to hear some or all of the first applicant's Perth-based witnesses, except Mr Asplin, and the respondent's Perth-based witnesses. We will then have to travel to Meekatharra at a later date to hear the respondent's and first applicant's witnesses other than Mr Asplin in Meekatharra. We will then have to return to Perth for the hearing of Mr Asplin's evidence, potentially other witnesses of the first applicant, and closing submissions. In my opinion, it is generally very undesirable that such a fragmentation of the court process occur.
Another question to be borne in mind is the question of the Court's administration and the efficient functioning of the Court. This issue is mentioned as a relevant factor in the National Mutual case. The relevant passage was also referred to with approval in the case of Andrew and Frewen. Interestingly, in that case at page 9 the Court referred to the primary judge's view in that case, which involved a potential change of venue from Adelaide to Victoria, that the primary judge would accommodate the convenience of each of the parties by hearing as much of the case as might be required in Adelaide with the balance of the case being heard in Victoria. The primary judge expressed his willingness to sit in regional centres of Victoria close to supermarkets which were relevant to the case before him. The primary judge observed that that is the efficacy of a national court.
In relation to the administration and convenience of the Court, the following factors seem to be relevant. If the Court is to travel to Meekatharra, there must be three officers of the Court being myself, a court officer and a transcript officer, to travel to Meekatharra. That would involve travel costs, accommodation costs and incidentals. It may also be that there is a cost to the Court in using the court building in Meekatharra. Secondly, these officers will, therefore, be away from Perth and unavailable to perform other functions that they do to the same degree and efficiency, for example, the other duties of the court officer and for me, judgment writing.
One also needs to take into account the facilities in Meekatharra. In this regard I am advised that there is a State court which is an adequate building for the purposes of the Court. I am also advised that there is commercial travel available to Meekatharra and that there is appropriate accommodation there.
With respect to the question of the costs to the Court, there has been well publicised cuts to the annual budgets of the Federal Court and the Industrial Relations Court as part of governmental policy, the cuts to the Industrial Relations Court perhaps being more mortal than those to the Federal Court. Part of this policy appears to be aimed at the greater payment by litigants for the costs of the services that courts provide, for example, the suggested Federal Court daily fee for hearing cases. The courts must operate within the budget set by the government of the day. The expenditure of the finite budget of the Court is the expenditure of public resources. The Court is entitled to have regard, in my opinion, in considering the question of an application to sit in remote areas, the costs to it in so doing. If the Court is to allocate resources in this direction then it may well not have those resources to allocate in other directions which may affect in other ways the administration of the Court and the service it provides to litigants and the public generally.
In saying this, it must be recognised that a court's ability to attain justice can only be properly fulfilled if it has sufficient resources available to it to meet that end. If it does not and cannot accommodate what it or the parties might think is otherwise just, any complaint of the parties or the public does not rest with the court. The debate and issue is of much wider ambit.
I return to the question of delay which, as I mentioned earlier, concerns me. I have mentioned my opinion that the Court should not require Mr Asplin to travel at least prior to 8 April 1997. There are then difficulties with my availability. Without needing to go into detail, the situation is such that my availability will be that it is not until mid May at the earliest that I would be in a position to travel to Meekatharra to hear the balance of this case. The situation would almost certainly be different if the whole of the case were heard in Perth. From information provided to me yesterday by Ms O'Brien, the first date after that time that the Meekatharra court would be available would be from 9 to 13 June. After that, as I have indicated, there would then need to be a further hearing in Perth for the taking of other evidence for the first applicant and closing submissions.
Given the amount of evidence to be given in this matter, it is inevitable that my decision will have to be reserved and given the decision will be a substantial one having regard to all the evidence, there may be some delay in effecting my decision and reasons. Therefore, the delay occasioned in the matter being heard in the way which the respondent seeks is substantial. It will mean there is a delay of about three months between the completion of the evidence in Perth in March and the hearing in Meekatharra and there then would be further delays after that. Delays and a fragmentation of process of such a kind are difficult to justify in all but exceptional cases.
In this case, the first applicant seeks reinstatement. Ordinarily, cases where reinstatement is sought should be dealt with expeditiously. This is clearly the policy of the legislation. In this case, however, the effect of the delay is less than in ordinary cases because of Mr Asplin's medical condition. This is such that he will not be able to work for at least six weeks and possibly longer. To some extent this ameliorates the effect of delay in hearing the matter upon him and the question of reinstatement. Nevertheless, the delay to the first applicant is undesirable. It is often said that justice delayed is justice denied.
CONCLUSION
I regard the question of delay to the first applicant as a weighty factor. As against this, the most weighty factor in favour of the respondent's application is the fact of and cost to the respondent of the matter being heard in Perth, taking into account all the facts and circumstances I mentioned earlier. The decision is finely balanced and either way one of the parties will have some justification in feeling disgruntled. However, on balance I will accede to the respondent's application. An important consideration in the final analysis is that Mr Asplin can, if the case is determined in his favour and he is reinstated, be compensated for the delay in returning to the respondent's employ, whilst it is very difficult to see that the respondent will have any basis to recoup the costs it will have to outlay in witnesses travelling to Perth.
In this regard I refer to section 170EE of the Act and the power of the Court to order payment of any amount lost by reason of termination if it orders reinstatement or compensation. Also, the first applicant may be able to obtain alternative employment before the resolution of the matter and after his medical condition subsides. He will, of course, be well advised to look for alternative employment to try and satisfy his duty to mitigate his loss. If he is successful in obtaining such employment, this will decrease to some extent the unfortunate effects of the delay in the litigation.
Therefore, I will make orders that part of the case be heard in Meekatharra, but this will be on a conditional basis.
As foreshadowed, one of the conditions will be that the respondent pay the first applicant's costs of return airfare to Meekatharra, his accommodation there and a meals allowance which will need to be paid a certain period prior to the hearing in Meekatharra. Secondly, all of the witnesses of the first applicant and the respondent, apart from Mr Asplin, who are to give evidence in Perth will do so either this week or the week commencing 10 March 1997. I will make an order, when the orders are finally made, that there be liberty to apply as well, so that any difficulties that arise can be brought back before me forthwith.
The final orders that I make will be made when it is confirmed from the Court's inquiries that the Meekatharra court is available from 9 to 13 June 1997 and that there is appropriate air travel and accommodation for a hearing of the court in Meekatharra on those dates. But assuming that to be the case, then the matter will be listed for those dates in Meekatharra at that time.
POSTSCRIPT
After delivering these reasons, Mr Lourey drew to my attention the statement that all of the first applicant's witnesses except Mr Asplin would give evidence this week or in the week commencing 10 March 1997. Mr Lourey has advised that the first applicant's preference is that not all witnesses give evidence in these weeks. I have indicated that I will accommodate the first applicant's preference on this given it is the first applicant who is otherwise disadvantaged by delay. Therefore, it is a matter for Mr Lourey as to which witnesses of the first applicant will give evidence prior to the hearing in Meekatharra.
I certify that this and the preceding twenty-two (22) pages
are a true copy of the reasons for decision of
Judicial Registrar Ritter.
Associate:
Date:
APPEARANCES
Advocate for the First and
Second Applicants: Mr Lourey
Counsel for the Respondent: Ms S. O'Brien
Solicitor for the Respondent: Talbot and Olivier
Date of hearing: 24 - 26 February 1997
Date of judgment: 26 February 1997
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