David Charles Campbell and DDB Needham Melbourne Pty Limited

[1994] IRCA 71

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 413 of 1994

B E T W E E N:         DAVID CHARLES CAMPBELL and

AND:               

DDB NEEDHAM MELBOURNE PTY LIMITED

COURT:       J.A. RYAN, Judicial Registrar

PLACE:        MELBOURNE

DATE:  31 AUGUST 1994

THE J.REGISTRAR:   The applicant seeks remedy under section 170EA.  At a directions hearing on 18 July Registrar Agnew ordered that the respondent file and serve any notice of motion and affidavit in support on or before 1 August returnable on 29 August.  On 1 August the respondent filed a notice of motion seeking dismissal of the application (the application under section 170EA) and costs.  I shall refer to this as “the first notice of motion”.

On 29 August, on the return of the first notice of motion counsel for the applicant submitted that as judicial registrar, I should exercise the discretion under section 378(1)(b) not to determine the notice of motion and should make arrangements for the court, that is a judge, to hear the notice of motion.  I reserved my decision on this preliminary submission until 2.15 pm on 31 August, today.

On 30 August the respondent filed a second notice of motion seeking an order under section 378(2) that the power to hear the first notice of motion be exercised by a judge. 

The applicant is a person who would be a party to the proceedings in the first notice of motion of 1 August, returnable 29 August and adjourned to today.  I regard the second notice of motion of 30 August, returnable today, as including an application under section 378(3) for an order under 378(2).  Pursuant to section 378(4) I must not exercise a power delegated under section 376 if an application is made under section 378(3) until the application under section 378(2) has been determined.

I am prepared today to make a decision on the preliminary submission on 29 August that I exercise the discretion under section 378(1)(b) and make arrangements for referral of the first notice of motion to a judge. 

If I do not do so and the judge decides to hear the first notice of motion, no decision will be necessary on the preliminary submission.  If I do not do so and a judge declines to hear the first notice of motion, the preliminary submission, if still on foot, will still have to be determined.

I have considered submissions put to me by counsel for the applicant and counsel for the respondent and I am not of the view that it is not appropriate for me to hear the first notice of motion.  If I can put that in simple and positive terms, I consider that it would have been appropriate for me to hear the first notice of motion and I would, and I suppose I do, decline to exercise the discretion to refer that notice of motion under section 378(1)

I think I should, however, make some arrangements with respect to the second notice of motion which is before me returnable today and my orders in relation to that are as follows:

1. the directions hearing be adjourned to a date to be fixed;

1. the respondent's notice of motion filed on 1 August 1994, the first notice of motion, be adjourned to a date to be fixed;

1. the applicant's notice of motion filed on 30 August 1994, the second notice of motion, be referred to the district registrar for referral to a judge pursuant to section 378(2).

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

Associate  :          
Date  8 September, 1994
Appearances:
Counsel for the Applicant                  :          C.B. O’Grady
Solicitor for the Applicant                 :          J.M. Smith and Emmerton
Counsel for the Respondent   :          Michael Wheelahan
Solicitor for the Respondent   :          Allen Allen and Hemsley
Date of Hearing  :          29 August 1994
Judgment  :          31 August 1994