Chris Jenkin and Greenmaster

[1994] IRCA 153

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 1261/94

B E T W E E N:  CHRIS JENKIN
  Applicant

AND:GREENMASTER PTY LIMITED (TRADING AS BLUE TRAIN CAFE)

Respondent

COURT:              RYAN JR

PLACE:               MELBOURNE

DATE:                  8 DECEMBER 1994

APPLICATION FOR ADJOURNMENT

This is a notice of motion in which the respondent moves the Court for an adjournment from 14 December until some date in January after 3 January 1995.

The Court has dealt with the question of adjournments and delays in matters under Part 3 of Division 6A of the Industrial Relations Act 1988 in a series of unreported decisions including a decision of Northrop J. Mahnken v. Saunders Logging Pty Ltd 30 August 1994 TI 109/94. There are also my decisions Bugeja and Westhall Enterprises Pty Ltd 13 October 1994 VI 374/94; Campbell and Southern Motors Pty Ltd 24 September 1994 VI 853/94 and Giarrusso and TWU v Ampol Petroleum (Victoria Pty Ltd) 29 November 1994 VI 1126/94.

I do not propose to go through those decisions in detail other than to say that these matters are canvassed on pages 3 and 4 of the Campbell and Southern Motors decision.  I will simply draw attention to the fact that the Chief Justice and the most senior judge of this Court have both stressed that it is important that in this jurisdiction the earliest possible dates of hearing are set and retained and that this is in the public interest and in the interest of justice.  Parliament clearly intended unlawful termination claims to be determined quickly.  Delays and the elaborate preparation accepted in major commercial litigation are not acceptable in these cases.

I appreciate that the primary reason for adjournment in this matter is quite specific and I will come to that later but in this case, as in all cases the issue of adjournment and delay needs to take account of the particular circumstances.  The Court notes that

(1)termination took place on or about 7 July

(2)the respondent relies on grounds occurring on or before 4 July and set out in paragraph 3.2 of the affidavit of Angela Mathioudakis sworn 30 August 1994

(3)the applicant lodged, albeit late, on 3 August and the grounds on which he relies in seeking remedy have been known to the respondent since service on 22 August

(4)solicitors have been acting for the respondent since 25 August

(5)both parties were represented by solicitors at directions hearings on 30 August and 7 November

(6)the conciliation conference took place before a vice president of the Commission on or before 28 October

(7)the matter was fixed for hearing on 14 December at the directions hearing on 7 November

(8)the notice of motion seeking adjournment was not filed until 6 December initially with a return date of 12 December shortened after telephone representations from the respondent’s solicitors to today 8 December 1994.  I note that a return date of 8 December was achieved without any formal amendment to the notice of motion or without court endorsement and that the return date today does not allow appropriate notice under the rules to the applicant but nothing is made of that particularly as there has been no objection from the applicant

(9)it was fourteen days after the matter was set down for hearing before the respondent’s solicitor took steps on 21 November, and then only in writing, to request the consent of the applicant’s solicitors to an adjournment.

The primary grounds for adjournment are set out in paragraph 6 to 11 of the affidavit of Joseph Dorfman, solicitor, sworn 6 December.  I have considered those grounds carefully and the kernel of them is in paragraphs 8, 10 and 11 which are as follows

8..... The restaurant is extremely well located and is frequented by numerous corporate entities and the general public for the purposes of Pre-Christmas and end of year lunch and dinner functions.

10.. These proceedings relate specifically to the conduct of the applicant whilst he was employed with the respondent.  In order for the respondent to properly oppose the applicant’s claim, a number of the respondent’s employees will be required to attend the hearing to give evidence on behalf of the respondent.  Further, each of the directors of the respondent, who are all actively involved in the day to day running of the restaurant, will be required to give evidence at the hearing.

11.. In this event, the respondent’s restaurant will be short of staff on the day and will be unable to properly serve its customers on the day.  This will result in the respondent suffering significant loss and damage to its reputation and goodwill.

I simply do not agree that it will be necessary for the respondent’s witnesses to be here in Court during the running of the trial on 14 December or on any subsequent day if the trial extends beyond the one day allotted.  Southbank is very close.  Mobile communications can bring individual witnesses as required very quickly from Southbank and I have no doubt the Court will permit short adjournments if a witness has not arrived from Southbank.

I see no reason why general instructions to the respondent’s legal advisers on the day of trial cannot be given by one responsible officer or director of the respondent company.  I see no reason why other staff and directors need be present except to give evidence.  Witnesses are likely to be ordered out of court prior to giving evidence in any event.

Other instructions, if they cannot be given by the one nominated person attending for the respondent company, can be easily obtained by telephone.

For most of the reasons outlined in the cases previously cited namely Mahnken, Bugeja, Campbell and Giarrusso and for the specific reasons I have cited peculiar to this case I do not believe that an adjournment is warranted on the grounds set out by the respondent’s solicitors and, more importantly, I do not accept that the loss and damage outlined in paragraph 11 of the affidavit of 6 December need or would or will occur.

The adjournment is refused and the notice of motion dismissed.

I certify that this and the preceding two pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :              

Date  :              8 December 1994

Appearances:

Counsel for the Applicant                 :              A Hounslow
Solicitor for the Applicant                 :              (Respondent in the notice of motion)
  Carroll & Dillon

Counsel for the Respondent             :              J. Dorfman

Solicitor for the Respondent:  (Applicant in the notice of motion)

Rosendorff & Associates

Date of Hearing  :              8 December 1994
Judgment  :              8 December 1994