Ecob, E.C. v Tongue, C.

No judgment structure available for this case.

IN THE FEDERAL COURT OF AUSTRALIA 1
NEW SOUTH WALES DISTRICT REGISTRY

) NO I l of 1986
INDUSTRIAL DIVISION )

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Between: ERNEST CHARLES ECOB

Applicant , .

And : CECIL TONGUE
Respondent

CORAH: Einfeld J
DATE: 29 March 1990
PLACE: Sydney

REASONS FOR JUDGMENT

The application in this matter was filed on 23 January 1986 under section 119 of the Conciliation and Arbitration Act 1904 (the Act) seeking a payment of past wages to a man named Geoffrey Sipple, a member of the Australian Workers Union of which the applicant +S an official. Mr Sipple is said to have been employed by the respondent in August/September 1983 as a woolpresser. Under section 67 of the Industrial Relations (Consequential Provisions) Act 1988, uncompleted procecdings under section 119 of the Act are to be concluded as if the Act was still operating.

On 23 Hay 1988, having waited in vain for the agreed statement of facts promised at the beginning, during and at the end of the hearing in 1987, I delivered my opinion on preliminary legal

out. This opinion is reported at [l9881 82 ALR 77. I commented

issues raised by the parties, in the circumstances therein set

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in my reasons for opinion on the degree to which the Court had

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been misled on the status and extent of the issues of fact, and I
criticised the inexcusable delays and other discourtesies that

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had occurred, principally caused by the respondent. This case j :

would never have been allowed to commence if I had known the i ,
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truth about that aspect of the case. It is clear that I was L
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significantly misled. There has been no effort to explain why, i':

and to excuse the delays and other abuses of the court's I i
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processes. The same attitude has persisted since. I-;
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When the earlier reasons were delivered, I was asked to give the . I
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parties an opportunity to consider them and to prepare a I , ,
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statement of agreed facts or issues of fact so that a final . ,

judgment could be given.

Nothing of the kind was presented on

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that day and, at the request of the parties, the matter was I
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adjourned to 1 July 1988 for this purpose. Liberty to apply at L
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an earlier date was granted in the event that the parties I
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eitermined that a hearing date was necessary because agreement on p >
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the facts could not be reached. On 1 July 1988, the respondent
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foreshadowed a possible application for leave to appeal although I
it was my view that an appeal was premature before the facts were

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found and a judgment given, and nonsensical without them. No -.
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orders of any kind had been made or were yet even in prospect. ,
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The Court had merely expressed its opinion on the preliminary

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issues of law posed by the parties and at their request, on the r
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basis of assumed but not proved or agreed facts. The matter was

then adjourned to 11 July for the long awaited and oft promised 5
agreement on the facts.
On 11 July 1988 counsel for the respondent announced that leave
to appeal had been sought and requested that no further steps be
taken to resolve the factual issues. Despite my belief that an
appeal was as yet inappropriate, I acceded to the application to
do no more in the matter. It was noted that if the application
for leave to appeal failed, there would still need to be
agreement on or a trial of the facts to translate the expressions
of opinion into a final judgment. An application by the
respondent for formal orders based on the views expressed on 23
May was refused, as was an application that I disqualify myself
from completing the hearing of the matter. A brief ex tempore
judgment was delivered on that occasion.

Apparently the application for leave to appeal was not made or was withdrawn or refused and the matter next came before the Court on 28 February 1989. There was no explanation for the inordinate delay. Agreement on several factual propositions was filed. It was indicated that this represented substantial but not complete agreement on the necessary facts. By consent the respondent was then directed to file and serve affidavit evidence of any further facts required within 14 days (March 13),

with the applicant to file his affidavits by 20 March 1989,
giving particulars of those factual contentions of the respondent which were agreed to and those disputed. The respondent was given 7 days to reply. The applicant was given leave to add to his application a request for a penalty upon the respondent under section 119 of the Conciliation and Arbitration Act, but liberty to the respondent to apply in relation to this order was granted. No application has ever been made in this connection. I noted

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that the parties had agreed to mutual discovery and inspection I f i
and fixed 31 March 1989 as the last date for these steps so that i
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the Court could promptly determine if an order for discovery was

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necessary. April 19 1989 was fixed for argument on discovery if i

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necessary as well as for return of subpoenas and other desired k ,
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interlocutory processes. The parties were directed to be ready on that day to fix a hearing date for the final determination of outstanding factual issues.

On 31 March 1989, the respondent filed an 18 page 85 paragraph affidavit with 14 long annexures (called "exhibits"). This was not only 19 days late; it also made nonsense of what was said on 28 February 1989 to the effect that what was then filed represented near agreement between the parties on the facts. ~lthough supposed only to deal with the "further facts" required for the factual assumptions made in my expressions of opinion on 23 May 1988, this affidavit covered quite a number of the matters supposedly alreaa; agreed to. It also raised matters which were quite irrelevant to the 23 May 1988 opinion on the prelimlnary issues of law and sought to re-argue some of the matters previously raised at the hearing on those issues, and to add a

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few more for good measure. i:
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On 11 April 1989, within the permitted 14 day period but for I
obvious reasons after the 20 March outer limit, the applicant
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filed a mere 3 page affidavit which took issue with some parts of
the respondent's 31 March affidavit and agreed with other parts.
The deponent was an official of the applicant's union represented i
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by senior counsel, yet the affidavit took some legal objections
to the admissibility of some parts of the respondent's affidavit.
No hearing or other means were suggested to deal with these
objections.

On 19 April 1989, an affidavit in reply was filed in Court by the respondent and I was told that that completed the evidence on the facts. The affidavit consisted of 6 pages, the majority of which contained excerpts from the transcript of various hearings before the Conciliation and Arbitration Commission. There was annexed to the affidavit what was called an "exhibit", described as a "bundle of pages", of no less than 286 pages of transcript of proceedings before the Commission on 11 February 1982. The relevance of this "exhibit" was not stated. The parts of it to which I was to dlrect attention and in what connection were not indicated.

An application on 19 April 1989 by the respondent for a special or stated case was refused, and I directed the'filing by Aprll 28 of statements of agreed and not agreed facts. In the case of the latter, there was also to be supplied a reference to the evidence bearing on each such issue of (ie - not agreed) fact and whether
cross examination was required. If no oral evidence was required, a timetable was set for the filing and serving of
written submissions - May 5 for respondent, May 12 for applicant,
May 19 for respondent in reply.

There then followed an amazing saga, even for this case. Within the time allowed, the respondent filed on 28 April 1989 what was

called the "Respondent's Statement of Facts." It consisted of 18

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pages and comprised 5 3 paragraphs. It will be remembered that

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agreement on all the facts had been promised at the beginning of, j :
during and at the end of the hearing in 1987, after the 1 -:
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expression of opinion on 23 May 1988 and several times

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subsequently. Agreement on what was indicated to be the bulk of 1
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the facts was announced and flled on 28 February 1989. What was :
first ordered on 19 April 1989 was a statement of agreed facts.
Yet after all this time and all those promises, what was filed 1.:
were the respondent's "facts". This contained a mass of t ,
immaterial matters, some that had supposedly long been the

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subject of agreement, and some which had never previously been l, ;
mentioned. I ._
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On 2 May 1989 the applicant filed what he called "Applicant's .,
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Statement of Facts Relevant to Reasons for Judgment". It > '
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comprised a very modest 3 pages and was intended to identify the
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evidence required to prove all the relevant assumptions in my 23 i

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May 1988 expressions of opinion (virtually all of it filed by the B .
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respondent) and to indicate the applicant's agreement to that , .
evidence.

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Nonetheless, on 24 May 1989, the respondent filed 3 documents \ .
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called respectively: 1 .
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(a) Admitted and Uncontested Facts (14 pages, 51 I

paragraphs). Apart from a small number of items I
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claiming support for agreement from the pleadings, the

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great majority of the evidence claimed to establish ! . .
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"agreement" came from the respondent's own affidavit and i
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"exhibit" material. This document was not signed by or
on behalf of either party. From what I was to glean the applicant's "admission" of these matters was not stated.
Contested Facts or Matters (3 pages, 7 paragraphs). This was also not slgned. Nor was there proffered a method by which these factual "contests" might be resolved.
Wrltten Submissions by the Respondent (48 pages, 176 paragraphs) signed by Counsel for the Respondent by his instructing solicitor. Attached to this was a sheet on which was typed:
(SOLICITOR TO ATTACH COPIES OF THE APPLICANT'S LETTER OF 27 MAY 1987 AND A COPY OF OUR LETTER OF 22 JUNE 1987 MARKED "A" AND "B"). Neither of these two letter.; was attached.

There was no request to cross examine anyone.

them very largely unintelligible. The wrltten submissions I have read these 3 documents fully. I regret that I have found

represent a lengthy but selectively expressed account of the history of the current proceedings, even repeating in summary form the submissions made in the earlier hearing and quoting at some length party and party and other correspondence concerning the resolution of factual issues. A number of absurd even
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insulting propositions about the conduct of the proceedings were I 'I
made. For example, submission number 38 says:

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38. The Reasons for Judgment express detailed opinions on preliminary questions. The Respondent is entitled to be heard on the Court's opinions on the preliminary questions and on the basis of the Court's reasons.

This was supposed to be a submission on the factual issues, to assist their resolution. It was not the forum for a claim of breach of natural justice. It ignored that the Court heard the respondent at length before reserving its decision, to await the promised agreement on the facts, on matters which the parties asked to be decided first. It audaciously overlooked that the Court waited many months for anything to emerge from the respondent, as so often promised, on the facts. What did emerge is detailed in the reasons published on 23 Nay 1988. Submission 38 also ignored entirely the invitation I then issued to the parties to have the matter listed for further hrgument on the facts required to finalise the matter and to cross examine. Everything since has supposedly been geared to reaching agreement on the facts; the respondent has merely prevaricated and

obfuscated throughout.
The respondent's written submissions, supposedly on the factual

issues alone, then detailed what had happened in a procedural 7 I
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sense since 23 May 1988. They also take objections of law to
parts of the applicant's evidence and proceed to argue a series
of matters of law including several matters argued on the I'
preliminary questions of law submitted for determination which I 1.

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are now irrelevant. For example, part of submission 123,
repeated elsewhere including in submission 174, says:
The Respondent also contends that the decision of the full (sic) Court of this Court in the Roundstreet Case was incorrect and should not be applied here and is not, in any event, applicable on the facts here.

Again part of submission 124 says:
(2) ... the Respondent is merely denying that the Court has jurisdiction herein under Section 119 (on its true construction and insofar as Section 119 is valid and effective) ...

There are pages of similar examples. No request for a hearing to resolve the questions of admissibility was made.
The submissions conclude with the extraordinary proposition:
175. For the above and other reasons, the premises
of and the Reasons for Judgment of 23 May 1988 were
incorrect and should not be repeated.

There were no such premises, only factual assumptions rendered

necessary by the lack of evidence or the promised agreement on the facts. The question of their repetition does not arise. The

correctness or otherwise of my opinions of law at that time are for a Full Court. As for the fate of Roundstreet, see OrToole v Charles David Pty Ltd 119891 90 ALR 112. It is not appropriate that I comment further on my opinions of 23 May 1988 in the light of this majority decision of the Full Court which was delivered on 8 September 1989 and is at present awaiting determination by

the High Court. In any event, as I understand O'Toole, the facts of and earlier findings in this case do not require that I do so. This is because, although O'Toole overruled Roundstreet insofar at least as Roundstreet had held that section 60 prevented an attack on the validity of an award in proceedings under section 119, I had earlier held that this is not a case in which, in my opinion, it is necessary to have recourse to section 60. The facts as now to be found give support to that conclusion.

Apart from those raised in the Points of Claim, the questions of fact required to be established to enable the conclusion of the matters addressed in my reasons of 23 May 1988 are there identified. They are as follows (the principal page numbers are from 82 ALR; the bracketed reference is to the page of the original print of the reasons):
Pages 79-80 (p. 5)

1. A log of claims was duly served by the AWU on the respondent
or a registered organisation to which he belonged in 1964.

2. The log included demands for a minimum wage rate for woolpressers. , :

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3. A dispute was found and arbitrated and an award made.
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4. This award was varied several times subsequently including in

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1982. The wage for woolpressers was substantially more in 1982 than had been sought in the 1964 log. The 1982 variation was not appealed. (There have been a number of increases in the wage since, but this application is for a payment pursuant to the 1982 variation.)

Page 80 ( p . 6 )
5. The 1964 award and its subsequent variations prior to 1982 bound the respondent.

Pages 80-81 ( p . 7 )
6.   The application for the 1982 variation had a different matter or file number and some different respondents to the 1964 application.
7.  However, it was defended by the LGPIA which was an amalgam of two earller registered organisations of employers who or whose predecessors had been respondents to the 1964 award.
8.  The respondent was therefore a member of the LGPIA or its predecessors at all times relevant to this matter.

Page 83 (p.12)
9. A dispute was found or existed on the application for the
1982 variation, and was arbitrated.
10. The application for the 1982 variation named and was served on the LGPIA.

11. The 1982 variation therefore bound the respondent.
In my opinion each of these matters is now established by evidence or admission or both, or by operation of law in the light of the facts proved. There is no dispute on the "interstate" requirement. The respondent also does not relevantly dispute the assertions made in the Points of Claim needed to found the application, although there may be a very minor difference on the period of work alleged by the applicant. I have found nothing to throw doubt on the applicant's evidence in this regard.
Accordingly I order that the respondent pay to Geoffrey Sipple the sum of $228.06 pursuant to the Pastoral Industry Award 1965 in respect of his employment between 16 August and 15 September 1983.
There then arises the question whether this is an appropriate case for a penalty in accordance with the application permitted to be added on 28 February 1989. In my opinion it is. In North

v Television Corporation Ltd L19761 11 ALR 599, Smithers and Evatt JJ said at 612:
l'. . .. . i t is undesirable that an employer should be encouraged to act on the basis that if he fails to obey an award, the employee may not take action against him, and that if he does, he, the employer, will probably suffer no more than if he had obeyed the award."

Because of the effect of the passage of time on the value of money, this employer would in fact pay less if there was no penalty. Although it was pointed out in Gapes v The Commercial Bank of Australia Ltd [l9791 27 ALR 87 that it dld not matter for jurisdictional purposes whether the breach for which the penalty was being imposed was wilful or accidental, a wilful and lengthy breach such as this one must attract a more severe penalty. The relatively small amount of money involved is a further aggravating factor, because this is hardly the set of circumstances that should have been used for a test case on the law unless the money was paid ex gratia or without prejudice in the meantime.
I therefore pronounce a penalty on the respondent of $1000. In view of the length of time since the liability to pay arose, I order that the penalty be paid to Mr Sipple, pursuant to section 119(2) of the Act.
Before leaving this case, it seems to me that the length of this litigation should be decried. This claim for wages for work done in late 1983 was filed at the beginning of 1986. This was itself

a long delay by the applicant, even if it followed some efforts to obtain payment without the need for litigation. More than

four years has passed since, most of which appears to be due to the filibustering and bluster o f the respondent's representatives. The withholding of the money owed to Mr Sipple and the expeditious despatch of the litigation appear to have been entirely ignored. The Court should not be easily persuaded to engage in this type of exercise again.

I ceri~fy that the -hideen
j preceding pages are a true copy of the
' Reasons ior Judgment herein of his Honour
Justlce Einfeld

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Citations

Ecob, E.C. v Tongue, C. [1990] FCA 111

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would never have been allowed to commence if I had known the	i ,
I-.:
t -

truth about that aspect of the case.	It is clear that I was	L
i .
significantly misled.	There has been no effort to explain why,	i':

and to excuse the delays and other abuses of the court's	I i
i
processes. The same attitude has persisted since.	I-;
:
When the earlier reasons were delivered, I was asked to give the	. I
, ,
I
parties an opportunity to consider them and to prepare a	I , ,
r
statement of agreed facts or issues of fact so that a final	. ,

that day and, at the request of the parties, the matter was	I
!

adjourned to 1 July 1988 for this purpose.	Liberty to apply at	L
k
i

few more for good measure.	i:
!
?
:'
I'
On 11 April 1989, within the permitted 14 day period but for	I
obvious reasons after the 20 March outer limit, the applicant
i
filed a mere 3 page affidavit which took issue with some parts of
the respondent's 31 March affidavit and agreed with other parts.
The deponent was an official of the applicant's union represented	i
!
by senior counsel, yet the affidavit took some legal objections to the admissibility of some parts of the respondent's affidavit. No hearing or other means were suggested to deal with these objections.
On 19 April 1989, an affidavit in reply was filed in Court by the respondent and I was told that that completed the evidence on the facts. The affidavit consisted of 6 pages, the majority of which contained excerpts from the transcript of various hearings before the Conciliation and Arbitration Commission. There was annexed to the affidavit what was called an "exhibit", described as a "bundle of pages", of no less than 286 pages of transcript of proceedings before the Commission on 11 February 1982. The relevance of this "exhibit" was not stated. The parts of it to which I was to dlrect attention and in what connection were not indicated.
An application on 19 April 1989 by the respondent for a special or stated case was refused, and I directed the'filing by Aprll 28 of statements of agreed and not agreed facts. In the case of the latter, there was also to be supplied a reference to the evidence bearing on each such issue of (ie - not agreed) fact and whether
cross examination was required. If no oral evidence was	required, a timetable was set for the filing and serving of
written submissions - May 5 for respondent, May 12 for applicant, May 19 for respondent in reply.
There then followed an amazing saga, even for this case. Within the time allowed, the respondent filed on 28 April 1989 what was
called the "Respondent's Statement of Facts."	It consisted of 18

Nonetheless, on 24 May 1989, the respondent filed 3 documents	\ .
I .

great majority of the evidence claimed to establish	!	.	.
I
"agreement" came from the respondent's own affidavit and	i
:.

them very largely unintelligible. The wrltten submissions	I have read these 3 documents fully. I regret that I have found
represent a lengthy but selectively expressed account of the history of the current proceedings, even repeating in summary form the submissions made in the earlier hearing and quoting at some length party and party and other correspondence concerning the resolution of factual issues. A number of absurd even

issues alone, then detailed what had happened in a procedural	7 I
..
sense since 23 May 1988. They also take objections of law to
parts of the applicant's evidence and proceed to argue a series
of matters of law including several matters argued on the	I'
preliminary questions of law submitted for determination which	I 1.

a long delay by the applicant, even if it followed some efforts	to obtain payment without the need for litigation. More than
four years has passed since, most of which appears to be due to the filibustering and bluster o f the respondent's representatives. The withholding of the money owed to Mr Sipple and the expeditious despatch of the litigation appear to have been entirely ignored. The Court should not be easily persuaded to engage in this type of exercise again.

[1990] FCA 111

29 Mar 1990