Frank Bugeja and Westhall Enterprises Pty Ltd

[1994] IRCA 88

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 374 of 1994

B E T W E E N:                 FRANK BUGEJA

AND:    
               WESTHALL ENTERPRISES PTY LIMITED

COURT:              RYAN JR

PLACE:               MELBOURNE

DATE:                  13 OCTOBER 1994

JUDGMENT EX TEMPORE

ADJOURNMENT REFUSED

I am not prepared to adjourn this matter.  The application was filed on 13 May.  It was listed at a directions hearing for trial on 20 and 21 September.  Because of judicial commitments in this court, the second day of the hearing was to be relisted for 22 September, meaning that had it proceeded on 20 September and run, it would have had a broken hearing.  A consent application for adjournment to two consecutive days after 10 October was made and granted on 8 September.

The hearing was fixed for today and tomorrow.  Counsel for the applicant this morning has sought an adjournment.  She was apparently only instructed yesterday.  Four witnesses considered important to the applicant's case are unavailable, or at least two of them are unavailable today and will probably need to be subpoenaed. 

Counsel points to the late service yesterday of the respondent's contentions of fact and law and categorises the missing or unavailable witnesses as important to a dispute between the parties as to terms and conditions of employment.  Counsel for the respondent opposes the adjournment.  The issues on which the application for remedy for purported termination of employment are based relate back to early May and to April and perhaps earlier.

Dispute as to terms and conditions of employment has been apparent from the outset.  True it is the respondent served contentions a little late but the applicant served contentions almost a month late on 3 October.  Reinstatement is and must be an issue.  The prejudice to the respondent could be significant. 

The late search is for witnesses, categorised as relevant to the issue of the conditions and terms of employment.  What concerns me about that is that I understood from what counsel for the applicant was saying even an adjournment of a month might be conservative.

RECORDED    :    NOT TRANSCRIBED

I am very much of the view that this matter should proceed.  Delay would prejudice the respondent.

There is another issue which I have taken into account and that is the business of this court and the public interest associated with that.  There is a heavy workload in the unlawful termination jurisdiction.
Cases which are adjourned, and particularly cases which are adjourned twice are likely to go further back into the list.  I will concede that it may be possible to bring it on again at short notice into a vacated date.  Nevertheless, the court is not disposed to adjourn this matter and it will proceed and it will proceed now.

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

Associate  :              
Date    :              20 October 1994
Appearances:
Counsel for the Applicant                 :              L.G. Gyfteas
Solicitor for the Applicant                 :              Maurice Blackburn and Co.
Counsel for the Respondent             :              Richard Mc Garvie
Solicitor for the Respondent             :              Gadens Ridgeway
Date of Hearing  :              13 October 1994

Judgment  :              13 October 1994