Danko Andonovski and Pacific Dunlop Tyres Pty Ltd and Goodyear Tyres Pty Ltd (Trading as "South Pacific Tyres")

[1995] IRCA 19

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  VI 1989 of 1994 
VICTORIA DISTRICT REGISTRY

B E T W E E N:

DANKO ANDONOVSKI
  Applicant

A N D

PACIFIC DUNLOP TYRES PTY LTD AND GOODYEAR TYRES PTY LTD
  (TRADING AS “SOUTH PACIFIC TYRES”)
  Respondent

Reasons for Judgment

3 February 1995  PARKINSON JR

In matter number VI 1989 of 1994 the respondent by motion, notice of which was dated 23rd December, 1994 has moved for an order that the application be dismissed. The order for dismissal was sought because the application was filed outside of the time prescribed in S 170EA(3) of the Industrial Relations Act 1988 for the filing of applications.

The application was filed on 25th October, 1994, twenty six days outside of the prescribed time.

The motion was listed for hearing on 24th January, 1995 and at that time submissions were made by the respondent’s solicitor that the matter should be heard and determined at that time. The applicant’s solicitor sought to have the matter adjourned to be heard and determined at a future date along with other matters arising out of similar circumstances in the respondent company.

There are presently eight applications made pursuant to S170EA by former employees of the respondent listed for hearing on 20th February, 1995. These applications, which for convenience I shall refer to as the related applications (“the related applications”), are listed to be heard jointly and some are also the subject of applications for leave to file proceedings out of time, these latter applications for leave having been expressly reserved to the trial to be heard and dealt with immediately preceding any determination on the merits. The terminations which are the subject of the related applications apparently arose out of the same circumstances as the present case which was, I am informed by the parties to this proceeding, a general situation of redundancy involving in excess of 60 employees of the respondent. 

Notwithstanding the steps which had been taken in respect of the related applications, it was the submission of the respondent that it was appropriate for this notice of motion to be heard and determined separately and not referred to be determined with those other applications discussed above.  Its submissions in this regard principally relied upon the uncertainty faced by the respondent in awaiting the trial date to have the question determined and the consequent difficulty this uncertainty created both in preparation and in consideration of settlement possibilities.

It was also submitted that this uncertainty was being aggravated by not knowing the number of applications likely to be faced by the respondent if it were not able to rely upon the time limitations prescribed in the Act.

Having heard submissions I decided that I would proceed to hear the parties in relation to the motion to summarily dismiss the application. 

It was the submission of the respondent that there should be no extension of time granted to the applicant and that consequently the application ought be dismissed. The principal matters relied upon by the respondent in relation to its submission that the application ought not be allowed out of time were the significant prejudice to the respondent if the application were allowed to proceed, the prejudice to the applicants in the other related applications in terms of delay occasioned by the preparation for additional applications, and that the applicant in its material had not identified sufficient material to explain his failure to institute proceedings within the time specified.

In response, the applicant submitted that the matters in the applicant’s affidavit raising the applicant’s lack of knowledge of a remedy and his inability to speak English were matters in explanation of his failure. In addition the applicant relied upon the stress occasioned by his termination after 12 years of employment as another factor of relevance. The applicant also submitted that the circumstances of other applicants in proceedings against the respondent were not relevant to the exercise of the discretion in relation to the present applicant.

Neither the applicant or respondent provided me with evidence as to  the circumstances of the redundancy in this matter or in the related applications. The events and circumstances leading up to the decision, including the information relayed to the applicant at the time of the termination, may be relevant matters in determining whether leave to proceed out of time ought be granted.  

No submissions were made by either party as to the prospects of success or otherwise of the substantive application and, whilst the applicant’s affidavit in reply did contain a reference to his belief on advice received that he had a good case, no basis was put forward for this assertion.

I am further not satisfied that I am fully informed as to the nature of the prejudice that the respondent alleges will be occasioned by the continuance of this application as opposed to the related applications. On the material before me I am unable to agree that such prejudice does exist. There is no factor which would distinguish this matter from those related applications which are to be heard on 20th February, 1995.

The motion before me seeks summary dismissal of the application. I have had regard to the decision of Barwick C.J. in General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 wherein the Chief Justice considered the circumstances in which it is appropriate to deal summarily with an action. The following extract from that decision is apposite (at pages 128-129):

“ The plaintiff rightly points out that the jurisdiction summarily to
            terminate an action is to be sparingly employed and is not to be
            used except in a clear case where the Court is satisfied that it has
            the requisite material and the necessary assistance from the parties
            to reach a definite and certain conclusion.”

Having regard to the absence of factual material and the history of this matter, including the fact that there are related applications before the court, I am not prepared to grant the order sought in the motion to dismiss the application summarily.  I dismiss the notice of motion.

The application which is VI 1989 of 1994 will be listed for hearing on 20th February, 1995 at which time the Judicial Registrar will hear and determine the application for leave to file out of time of this and the other related applications. The parties are directed to file and serve any further affidavit material upon which they seek to rely in relation to the application for leave to file out of time on or before 14th February, 1995.

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

Associate:
Dated:     3 February 1995

Solicitors for the applicant:  Patrick Robinson & Co.

Solicitors for the respondent:  Freehill Hollingdale & Page

Date of hearing:  24 January 1995
Date of judgment:  3 February 1995