Geoffrey E. Hudson and Princetown Pty Ltd

[1994] IRCA 18

INDUSTRIAL RELATION COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
  VI 657 of 1994

B E T W E E N :

GEOFFREY E. HUDSON
Applicant

A N D

PRINCETOWN PTY LTD
Respondent

Reasons for Judgment

(Delivered Ex Tempore - Revised from Draft Transcript)

PARKINSON JR
8 AUGUST 1994

In this matter I deliver my decision and my reasons for decision ex tempore.  This matter comes before me on notice of motion wherein the applicant seeks, pursuant to sub-section 3 of section 170 EA of the Industrial Relations Act 1998 ("the Act") an extension of time for the filing of an application in relation an alleged unlawful termination.

In this matter there has been a significant period of time elapsed between the date for filing in compliance with section 170EA of the Act and the date upon which the application was actually filed. The written notice of termination of employment was given on 27th April 1994. It appears that at the very earliest the application was received by the Registry of the court on 1 June 1994, although it bears the Registry stamp dated 6th June 1994.

Whilst in these applications a broad discretion exists in the court to extend time, the exercise of that discretion must be made having regard to the merit of the matters put forward by the applicant and the prejudice to each party in extending or not extending time.  In the present circumstances I have had regard to the matters put before me by both the respondent and the applicant.  In particular I have had regard to the respondent's employment of a replacement employee only some time after the expiration of the 14 day period for filing, and the fact that both parties were from the outset legally represented and on notice as to their respective rights and obligations under the act.  There is an absence in this motion on notice of any material in the affidavit of the applicant which identifies circumstances to suggest that the prejudice evidenced to flow to the respondent should be disregarded.
In those circumstances therefore I decline to abridge the time for the filing of the proceedings.  This notice of motion is therefore dismissed.

The Respondent's Application for Costs.
The decision in relation to this matter was made in the exercise of my discretion.  There is provision in the act for abridgment of time, and the proceedings which were brought in this court were brought in contemplation of and in the knowledge of those provisions.  The failure of the applicant to succeed on this notice of motion does not establish that the bringing of the proceedings, or indeed the matters contained in the notice of motion were vexatious or without reasonable cause, and on that basis I dismiss the respondents application for costs.

I certify that the preceding two (2) pages

are a true copy of the reasons for judgment of
Judicial Registrar Parkinson as recorded in the
draft transcript and revised by the Judicial Registrar
on 15 August 1994.

Associate:

Dated: 15 August 1994

Solicitor for the applicant:  Duffy & Simon
Solicitor appearing for the applicant:  Mr F. Burns

Solicitor for the respondent:  Corrs Chambers Westgarth
Counsel appearing for the respondent:                   Mr O.P. Holdenson

Date of hearing:  8 August 1994
Date of judgment:  8 August 1994