Foundadjis v Bailey
[2006] QMC 8
•18 May 2006
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Foundadjis v Bailey [2006] QMC 8
PARTIES:
NEOPLYTOS FOUNDADJIS
(applicant)
v
COLIN BAILEY
(respondent)
FILE NO/S:
MAG63868/04(3)
DIVISION:
Magistrates Courts – Industrial Magistrate
PROCEEDING:
Application for recovery of unpaid wages – Application to strike out initiating application
ORIGINATING COURT:
Magistrates Court at Mareeba
DELIVERED ON:
18 May 2006
DELIVERED AT:
Mareeba
HEARING DATE:
24 April 2006
MAGISTRATE:
Braes T
ORDER:
Application for recovery of unpaid wages struck out
CATCHWORDS:
INDUSTRIAL LAW – WAGES – application to recover unpaid wages – application to strike out - whether there was a failure to prosecute application
Industrial Relations Act 1999, s 399(1)
Justices Act 1886, s 102G
COUNSEL:
Applicant on own behalf
Apel for respondent
SOLICITORS:
Applicant on own behalf
This is an application by the respondent/defendant, Colin Bailey (Bailey), to strike out the application of the applicant/plaintiff, Neoplytos Foundadjis (Foundadjis), for unpaid wages. The application was heard before me on 24 April 2006, when Mr Apel appeared for Bailey and Mr Foundadjis appeared on his own behalf.
The history of the matter is set out in the affidavit of Bailey sworn on 21 March 2006.
The application was permanently stayed by order of His Honour Magistrate Lock on 18 February 2005.
Foundadjis has not sought to lift the stay order but did seek to have the matter transferred back to Brisbane. This application was rejected by me on 16 January 2006 and Foundadjis ordered to pay Bailey’s costs of $400.00. I am told by Mr Apel, solicitor for Bailey that these costs remain unpaid. Foundadjis said before me on 24 April 2006 that he had lodged an appeal against that decision. Mr Apel had received no notification of that appeal. The Mareeba Magistrates Court has received no notification of that appeal. I have made enquiries of the District Court Cairns and have been advised that no appeal has been lodged in that Court.
The application for unpaid wages is brought pursuant to section 399(1) of the Industrial Relations Act 1999.
Pursuant to Rule 92 of the Industrial Relations (Tribunal’s) Rules 2000 the Justices Act 1886 applies to these proceedings.
The questions for determination by me are:
· Do I have power to strike out the application for want of prosecution;
· If so, has Bailey established the grounds for striking out?
The application is a private complaint (section 4 Justices Act). The Justices Act section 102G provides jurisdiction to the Magistrates Court to strike out a private complaint for want of prosecution. I therefore have jurisdiction to grant the relief sought.
The claim was set down for hearing on 9 December 2004. On that date Foundadjis did not appear. The matter was adjourned to 24 February 2005 for hearing. Prior to 24 February 2005 Foundadjis sought to have the matter brought on early and it was mentioned in this court on 18 February 2005. Foundadjis did not appear but had written to the court seeking an adjournment. On that date the court made the following order:
“proceedings are permanently stayed. Applicant will be required to make application to the Court lifting the stay and providing evidence that the application will be prosecuted and he is in a condition medically to travel and prosecute the claim”
Approximately 12 months later Foundadjis made application to have the matter transferred back to Brisbane. The claim was originally filed in the Brisbane Industrial Magistrates Court on 24 March 2004 and after argument was, on 10 August 2004, transferred to Mareeba. As stated the application to transfer the claim back to Brisbane was unsuccessful.
On the hearing of the application to strike out for want of prosecution Foundadjis appeared and relied on his affidavit sworn on 21 April 2006, the affidavit of Mr John Kelly sworn on 21 April 2006 and two letters, one from Mr G Tatti and one from Mr M Tomerini. The evidence did not address the substance of the application to strike out the proceedings for want of prosecution. Foundadjis has never made an application to lift the stay order.
In this application Bailey relied on his affidavit sworn on 21 March 2006. In his affidavit Bailey:
· Denies the claim;
· Sets out the investigations undertaken by WorkCover Queensland and the Australian Workers Union
· Sets out briefly a chronology of the action in the Industrial Magistrates Court;
· Confirms that the action has so far cost him in the order of $6,000.00.
It is apparent that the matter could have proceeded as a hearing on 9 December 2004 and on 24 February 2005, had Foundadjis appeared.
Nothing has happened since 18 February 2005 until the application to remove the action to Brisbane which was determined on 16 January 2006. The application to transfer the claim back to Brisbane was not a formal application but contained in a letter from Foundadjis addressed to the Registrar of this Court and received on 2 December 2005. On the hearing of that application Foundadjis appeared by telephone.
In considering this application I should consider the merit of the claim. The claim as originally filed in 2004 is for $420.00. Foundadjis had the benefit of being represented by counsel and solicitors. Foundadjis has not paid the order for costs made on 16 January 2006. Exhibit A attached to Bailey’s affidavit is a letter from Sciacca’s lawyers. This correspondence addressed to Foundadjis confirms the conflicting instructions given by Foundadjis in respect of the incident and his employment. When considering the content of this letter together with the other matters already referred to I am of the opinion that the application should be struck out for want of prosecution.
Foundadjis has not prosecuted his claim with due diligence, a claim which is presently permanently stayed. No application has been made to lift that stay, additionally the correspondence exhibit “A” raises serious doubts about the merit of the claim, which would appear bound to fail.
The claim is struck out. I allow costs for Bailey in the sum of $5,076.00.
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