Australian Liquor Hospitality and Miscellaneous Workers Union and Noah's on the Beach

[1994] IRCA 129

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

SYDNEY DISTRICT REGISTRY  N^O. NI 469 OF 1994

BETWEEN

AUSTRALIAN LIQUOR HOSPITALITY
 AND MISCELLANEOUS WORKERS UNION
Applicant

AND

NOAH’ S ON THE BEACH
Respondent

CORAM:    PATCH JR
PLACE:     SYDNEY
DATE:        22 NOVEMBER 1994

REASONS FOR JUDGMENT
(Delivered ex tempore - revised from transcript)

In this case, both of the parties have applied for an adjournment, that is to say, they are applying for the hearing dates of today and tomorrow to be vacated.  There was no notice of motion to vacate the hearing date and the application for an adjournment was made orally at 10.15 this morning when the matter was listed for hearing.  The estimated length of hearing is one and a half days.

I note that yesterday the matter was listed for a directions hearing, presumably for the purpose of vacating the hearing date, but that, although the Registry faxed notices of the directions hearing to each of the party’s representatives as per the notices of appearance in the file, no-one appeared.

Mr Bailey, solicitor, has today filed a notice of appearance in the Court and informs me that he received instructions last week.  If he wished to receive communications from the Court, then he should have filed a Notice of Appearance when he first received instructions - not today.  So, it certainly cannot be said that his failure to appear yesterday can be excused in any way.  It is simply a result of his failure to file a Notice of Appearance earlier than today.

The practice of the Court in cases of this kind, where a certificate is given by the Industrial Relations Commission that no settlement has been reached at conciliation, is that the matter should be listed for hearing as speedily as possible after that certificate has been given.  That is what occurred in this case.

In the case of Kerry-Ann Keating v Teico Investments Pty Limited, matter number VI 281 of 1994, Northrop J said this:

“Any person who is a party to litigation in which a date has been fixed for hearing of the trial of that litigation always faces a dilemna.  If that person waits until the morning of the trial date and then seeks an adjournment and the application is refused, that person must be in a position to proceed with the hearing of the trial.  The only safe course is to make an earlier application by way of motion to have that hearing date vacated.”

Here there was no Notice of Motion.  The matter is listed for today and tomorrow.  There has been, in my opinion, an attempt to present to the Court a fait accompli, to force the Court to adjourn the matter.  I will not permit the Court to be manipulated in this way.  The application for adjournment is refused.  The matter will proceed at 2.15 this afternoon.  The Court is adjourned.

COURT:        D H Patch, Judicial Registrar

PLACE:        Sydney

DATE:            22 November 1994

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgement of Judicial Registrar Patch.

Associate        :         Julianne Taverner

Date  :         12 December 1994

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