Ecob v Tongue

[1988] FCA 864

IN TIE FEDERAL COURT OF AUSTRALIA	1
)
NEW SOUTE WALES DISTRICT REGISTRY )	No. I 1 of 1986

)

DIV SION INDUSTRIAL )

Between:  ERNEST C&ARLES ECOB

Applicant

And :	CECIL	TONGUE
-

Respondent

CORAM: Einfeld J.

-	DATE: 11 July 1988
PLACE:  Sydney
This matter is part heard and the respondent employer has applied for
leave to appeal from the expressions of opinion which I published on the
relevant legal issues on  23 May 1988. Those views were given subject to
a number of factual assumptions, there being no agreement manifest at or
since the hearing  on the facts which would found the views expressed.
The respondent argues that the relevant facts are agreed on the pleadings and affidavits. Bowever, the circumstances concerning the
facts are outlined  in my earlier published opinion. They are underlined
by the unsatisfactory exchange of correspondence between the parties since the hearing, at one point involving the Court. They have again been emphasised by statements made today by the solicitor for the applicant. Agreement seems to me to be far from the fact. This type of
matter is not appropriate to be dealt with "on the pleadings" even if,
as I doubt, they cover all the relevant matters. It is simply not reasonable for the Court to be required to fossick through a sizeable collection of filed documentation to try to find the attitude of each of
the parties  on each individual matter that needs to be proved in a
matter such as this. The applicant has always indicated that some facts
at least are disputed, and both parties agreed to my directions for the
filing of agreed facts and other matters given at the conclusion of the hearing.
The respondent's first submission today is that I should take no further
steps to resolve the factual issues. The respondent, having chosen to seek leave to appeal from what amounts merely to an expression of
opinion on the  law on the assumption that certain facts are ultimately
established, should certainly be entitled to pursue that application. I
make no further comment about it.
It is obvious that between now and the date when the application for
leave to appeal is to be heard  in about two weeks time, no trial of the
factual issues can occur, and  I am informed this morning that no
agreement has yet been reached.  I therefore accede to the respondent's

l

! request that I take no further steps at this stage with regard to the

i	facts. I point out that in the event that the application for leave to
appeal fails, there will still need to be, as there has always needed to
be, either agreement on the relevant facts or a trial of the factual
issues. In that matter I am at present part heard.
The second application which the respondent makes today is that I make
formal orders and declarations to give effect to the views which I
expressed on 23 May. It is true that in the formal documentation these views were expressed, as usual, as "reasons for judgment". They should
not have been so headed. In fact, they are reasons which would formulate
the basis for judgment in the event that the facts are finally determined in accordance with the assumptions made. This much is clear
from the substance of the text released on 23 May and my observations in
Court that day. I am therefore obviously not in a position to make any
orders or declarations at this stage. It has been stated again this
morning on behalf of the applicant that draft admissions have been
submitted to the respondent in accordance with the respondent's own
pleadings, but the respondent has not yet chosen to discuss agreement on those matters.
The next application by the respondent is that I should disqualify
myself from further considering the matter. I decline the application.
There is absolutely no basis whatever for such an application. What I
have done thus far is what I was asked to do by the parties, namely, to
try a preliminary issue and express an opinion in relation to the law
which covers those matters. I have not heard anything of the facts and
know nothing of them and have made no findings in relation to them.

Counsel for the respondent finally submits that an adjournment should be

granted so that he can seek further instructions. There has been far too
much time taken in this matter already for such purposes. The parties

have now had over one and a half months to obtain any instructions

necessary to deal with the opinions which I expressed on 23 May. and a

long time prior to that to reach the agreement that was promised during

the hearing of the matter. There is no basis for a further adjournment

of the matter. Indeed I am effectively unable to do anything useful in

this regard as the application for leave to appeal has been filed and it

will be dealt with, of course, by another judge o r a Full Court shortly.

Therefore further adjournments will not be useful in relation to this
matter. A further application by the respondent for an adjournment until

this afternoon is refused. The Court cannot be played with in this way.

I listed the matter this morning merely for the purpose of attempting to

assist the parties to avoid a possibly futile application	f r leave to
appeal, but as the respondent has chosen his	own course in the matter,

there is no warrant for my further involvement in this aspect of the case until the application for leave to appeal has been heard. After

that the further steps	to	be	taken	in	the matter will then be
considered.