Brian Richard Hodgman v WIN Television

[1995] IRCA 313

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
  TI 1026 of 1995

B E T W E E N:

BRIAN RICHARD HODGMAN
Applicant

A N D

WIN TELEVISION

Respondent

Reasons for Judgment - delivered ex tempore

27 June 1995  PARKINSON JR

This is my decision in relation to an application by the applicant for an adjournment of the hearing of his application pursuant to section 170EA of the Industrial Relations Act. It is also my decision in relation to an application by way of notice of motion filed by the respondent this day in the proceedings.

The application for adjournment was made on 26 June 1995, the day before this matter was due to proceed for hearing.  It was made by way of letter from the applicant to the court.  The applicant relies upon two factors in his application for adjournment.  The first is his inability due to his financial situation to access documents which he says are important to his case.  This is because the applicant says that he has been unable to access documents which he placed along with private domestic goods in storage for transfer to his new place of residence in Melbourne.  The second is his desire expressed on a number of occasions to the court to retain legal counsel to represent him in the proceedings.

There are a number of matters which cause me great concern about this application.  The respondent rightly points to the fact that this matter has been listed for hearing since 17 May 1995, and that it has been the subject of mediation and directions hearings, at which time the applicant was invited, indeed was reserved leave, to seek discovery of all documents in the possession of the respondent.  This he did not do.  The applicant has taken no steps since the directions hearing  in April 1995 to obtain or to ascertain the existence in the respondent's premises of the documents he has been unable to access through his own sources. 

Further, despite advising the registry officer of this court that he was in the process of arranging legal counsel, he has failed to take any steps to do so at all.  This, he said, was as a result of a lack of documentation supporting his case, and his financial circumstances.  The applicant has had no regard to the convenience of the court, nor has he attempted to remedy the respondent's inconvenience, such as by taking steps to give the respondent notice of his intention to make an application to seek an adjournment of these proceedings.

Fortunately, in this case the respondent was able to take steps to delay or prevent some of its witnesses from travelling from interstate.  The respondent points to the prejudice which may be occasioned it through the lapse of time and delay.  This, it said, may result in the memories of persons concerned in the termination of the employment not being as clear as they might have been had an earlier hearing taken place.  I am satisfied that the respondent, having already prepared these proceedings, and having already had its witnesses turn their mind to the issues and matters in this case, would not suffer measurable prejudice by virtue of an adjournment of these proceedings for a relatively short period of time.

The respondent also points to various documents and various decisions in this court in relation to the reluctance of the court to grant adjournments, and to the expressed views of the Chief Justice and a senior judge of this court as to the need for listing these matters quickly.  Nevertheless, any exhortation in those decisions in that regard must be tempered by the necessity in the court in each individual instance to be fair and to take into account the reasons which are advanced for the adjournment which is sought.

Notwithstanding matters raised earlier in relation to the applicant's tardiness, his case for an adjournment is his lack of legal representation and a desire for it, together with a financial disability which leaves him unable to attend on these proceedings, retain counsel or to obtain documents which he says are relevant to his case.  He further relies upon various technical matters, including issues as to costs being raised with him by the respondent's former solicitors, as forming the necessity for legal representation. 

In addition, it is apparent that the fact that the respondent is being represented professionally in these proceedings by an advocate knowledgeable of the processes and procedures of the legislation suggests that the applicant may be disadvantaged in the event that he proceeded without the desired legal representation.  It is understood and appreciated that it is a fundamental principle of natural justice that a person who seeks representation is entitled to that representation. 

I am, however, satisfied that the letter and the oral application for an adjournment made this day by the applicant, is an application made in the court which falls within the meaning of a proceeding for the purposes of section 347 of the Act and of the rules of the Court. I am further of the view that having regard to, one: the applicant's conduct in failing to raise with the respondent as well as the court the difficulties he may have had in proceeding;  two: his failure to obtain or even attempt to obtain legal representation; and three: his failure in my view to make adequate or reasonable attempts to obtain the documents he seeks, the proceedings which are the application for an adjournment of the substantive matter have been initiated without reasonable cause.  I am of the view that the conduct of the applicant in the above regard is relevant to take into account in determining whether or not he had reasonable cause to initiate this application for the adjournment.

To a large extent I am of the view that the reason for this application was due to circumstances directly within the control of the applicant, and in those circumstances the application for an adjournment, despite being granted, was not reasonable. I have therefore determined to award the respondent costs which I have assessed of the day, and of the preparation on the adjournment application. Those costs I have assessed, having regard to the information provided to me by the respondent's advocate, at $675.00.  Those costs the court will order to be paid by the applicant to the respondent.  A time for payment at 90 days will be set by the court. 

I turn now to consider the respondent's notice of motion in this matter. I have considered the contents of the respondent's notice of motion filed in court this day. It seeks the summary dismissal of the substantive application made pursuant to section 170EA of the Act. The application is made without notice to the applicant although he has been provided with a copy by facsimile through the means of the court prior to the respondent addressing the notice. I abridge time for service of the notice of motion and order that service of the notice of motion be taken as having been effected by the respondent through the service by facsimile this day, and through the acknowledged receipt by the applicant of the notice of motion and the affidavits together with it.

Having regard to the applicant wishing to be heard further on the affidavit material in the notice and the affidavit material in response, together with a desire to seek advice on the motion, I have decided to refuse to grant the notice of motion and, indeed, the summary dismissal of the application this day.  However, I do not dismiss the notice of motion.  Rather, it will be adjourned to be heard at a date which can be conveniently fixed together with the adjourned substantive proceedings.  Whilst the respondent may feel that upon a substantive hearing the notice of motion may well be overtaken, nevertheless in the event that the respondent desires to proceed as a preliminary matter with the notice of motion, it will be entitled to do so.  It must, however, give the applicant seven days notice of that intention prior to the date for hearing of the substantive application.

The applicant ought to understand that the granting of this adjournment and the consequent adjournment of the notice of motion was not brought about simply because of his desire for legal representation or other documents. He has indicated that he expects to be in a position to proceed with this matter in some four to six weeks. The applicant should be aware that the respondent is entitled to rely upon the delay brought about by the applicant as a result of this adjournment, in relation to any remedy which may be sought by the applicant in any future proceedings arising from his application pursuant to section 170EA.

The applicant has now been given ample opportunity to prepare for his case, even in the absence of legal representation on the next occasion.  I propose to order:

1. That the respondent provide to the applicant all documents upon           which   it proposes to rely in the hearing of this matter, together with          all documents, including memorandums and correspondence, which      exist in relation to the decision to make the applicant's position      redundant or to terminate his employment, and that these be provided    no later than 10 days prior to the date fixed for hearing of this matter.

1. That the applicant provide to the respondent all documents in his           possession upon which he seeks to rely within 10 days of the date of     hearing of the substantive matter. 

Any failure to comply with these orders by the applicant may result in the action being dealt with summarily, and leave is reserved in relation to that matter for the respondent to apply to the court in that regard.  That is my decision in relation to the two matters that are before me today.

I certify that this and the preceding five (5) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson delivered ex tempore.

Associate:
Dated:   27 June 1995

Applicant in person

Representatives for the respondent:  Tasmanian Chamber of   Commerce and Industry
Advocate appearing for the respondent:  Mr S Gates

Date of hearing:  27 June 1995
Date of judgment:   27 June 1995