Glen Andrew Campbell and Southern Motors Pty Ltd

[1994] IRCA 126

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination.

PRACTICE AND PROCEDURE - Adjournment - Application for - Solicitors changed prior to trial - Award breach - Recovery of wages - Preparation time requested - Adjournment opposed - Trial listed with four weeks notice - Details of application and response known from the two directions hearings and the conciliation conference - Unlawful termination claims to be determined quickly - Delays and elaborate preparation associated with major commercial litigation not acceptable - Adjournment refused.

Industrial Relations Act 1988, Section 128, Section 129, Section 170EA

Mahnken and Saunders Logging Pty Ltd Case No. TI-109/1994 (unreported).

GLEN ANDREW CAMPBELL AND SOUTHERN MOTORS PTY LTD

No. VI-853/1994

Before:              Ryan JR

Place:                 Melbourne

Date                  24 November 1994

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 853/1994

B E T W E E N:    GLEN ANDREW CAMPBELL Applicant

AND:    
  SOUTHERN MOTORS PTY LTD Respondent

COURT:              RYAN JR

PLACE:               MELBOURNE

DATE:                  24 NOVEMBER 1994

REASONS FOR JUDGMENT EX TEMPORE

APPLICATION FOR ADJOURNMENT OF TRIAL.

This is an application for adjournment of a trial which was listed for hearing on 24 and 25 November at a directions hearing held on 24 October.

The circumstances are as follows:

On 28 June 1994 Clayton  Utz, Solicitors, filed an application for compensation in respect of the termination of employment of Glen Andrew Campbell.  The applicant, in his affidavit in support filed on 28 June 1994, states that he was employed by the respondent as a finance consultant under the Vehicle Industry - Repair Services and Retail Award 1983 and commenced employment on 3 June 1993 and was terminated on 15 June 1994.

In his initial affidavit the applicant gave seven grounds for his belief that the termination was unlawful.  I mention those now as an indication of the preparation which had gone into the application at the date of lodgment on 28 June.  The first four grounds were stated to be failure of the respondent to

(a)make the applicant aware that his employment would in fact be terminated by reason of any problems drawn to attention during the period of employment

(b)give appropriate counselling, assistance and guidance in respect of any problems of employment

(c)provide the applicant with an opportunity to remedy perceived problems by way of a proposal allegedly between employer and employee on the day prior to termination

(d)give the applicant an opportunity to respond to allegations made against him on 15 June when he was being dismissed.

The other three grounds were:

(e)The applicant’s belief that in substantive terms his figures reflect a performance sufficient to justify retention as an employee

(f)The applicant’s expectation that employment would continue because other employees allegedly with similar or other problems were not dismissed in what were essentially analogous circumstances despite being threatened with dismissal if the problems continued

(g)the absence of any written warnings during the period of employment.

On 1 August, Edward R. Oates, Solicitor, entered an appearance on behalf of the respondent and three days later filed with the Court a detailed fourteen page affidavit in response.  This response was sworn by the managing director of the respondent company, disputes eleven important elements in the applicant’s affidavit and gives sixteen reasons for the respondent’s decision to terminate the applicant’s employment.  Again, I mention the detail in this affidavit to indicate the degree of preparation which had gone into the response at that early stage and the amount of information available by 4 August to both parties.

On 9 August Registrar Agnew directed that the matter be referred to the Industrial Relations Commission for conciliation and adjourned the directions hearing to 3 October.  This Order was entered on 15 August.

On 5 September Commissioner Gay certified pursuant to Section 170ED(2) that the Commission had been unable to settle the matter by conciliation.

On 29 September Registrar Morris, with the consent of both parties adjourned the directions hearing from 3 October to 24 October.  The respondent’s solicitor in his affidavit opposing the present application for adjournment of the trial gives some background to that first adjournment.  In his affidavit of 23/11/94 the solicitor, Edward Robert Oates, states
               Para 4.

“On 29 September, 1994 I was contacted by Mr. Ross Levin of the firm of Clayton Utz and advised that the applicant wished to transfer his file to Slater & Gordon and Mr. Levin sought an adjournment of the Directions hearing for 3 weeks to 24th October, 1994 to enable the firm of Slater & Gordon sufficient time to obtain instructions on the matter.  This matter was adjourned by consent to 24 October 1994”.

On 24 October neither the applicant nor his solicitor appeared at the directions hearing.  The respondent was represented by his solicitor and the matter was fixed for trial on 24 and 25 November.

On 25 October both the Court and the respondent’s solicitor advised Clayton  Utz of the listed date for hearing.

On 2 November Clayton Utz filed a notice that they had ceased to act as practitioners for the applicant from that date (i.e. 2 November 1994).

On 7 November the respondent’s solicitor wrote to Slater and Gordon seeking information as to whether that firm had instructions to act for the applicant.

On 17 November counsel for the respondent appears to have spoken to the District Registrar, Registrar Morris, regarding the prospect of the applicant not appearing at the hearing on 24th November, 1994 in view of the lack of representation for the applicant.

Later that day Registrar Morris informed counsel for the respondent that he had subsequently phoned the applicant and Slater & Gordon as solicitors for the applicant.

On 17 November (presumably after the Registrar’s telephone call) Slater and Gordon filed a notice indicating that they had been appointed to represent the applicant.

At 8:50 a.m. on 21 November the Registrar received an urgent facsimile letter from the applicant’s new solicitors indicating that

(1)they were not in possession of the file

(2)on instructions given it would appear to them that their client arguably had a claim under Section 178 of the Industrial Relations Act 1988 for entitlement arising under the Vehicle Industry - Repair Services and Retail Award 1983 and that they had not had an opportunity to investigate that matter.

This morning Mr. Kenyon for the applicant raised S179 (recovery of wages) and foreshadowed possible action under that section also.

The letter of 21 November also advised the Registrar that the solicitors were of the view that they would not be acquitting their obligations to their client, or to the Court if they endeavoured to prepare the current application for hearing on the dates listed and that if the matter proceeded on 24 November “it may cause a multiplicity of proceedings as the Section 178 matter could not be dealt with at the same time”.

The applicant’s solicitors conceeded that the respondent did not consent to any adjournment and sought the immediate advice of the Registrar as to whether or not, given the timeframe to the listed dates, the best course open to them was to issue a notice of motion in relation to obtaining an adjournment.

The Court’s listing’s coordinator referred this letter to me as the Judicial Registrar before whom the trial was listed on 24 and 25 November.  I expressed the view that the applicant’s solicitors should be advised immediately by telephone that the matter remained listed for trial on 24 November and that the applicant and their representatives should appear ready to proceed at 10:15 a.m. on 24 November and that the applicant was at liberty to file a notice of motion seeking an adjournment but that it could not be made returnable before 10:15 a.m. on 24 November.  I understand that this information was communicated to the applicant’s solicitors before 12:15 p.m. on 21 November and on 22 November the notice of motion and affidavit in support were filed.

This is an application for adjournment of a trial.

I do not believe any delay in this trial, a trial listed with a months notice, is warranted.  Solicitors and counsel are often faced with difficulties when a client discontinues the services of a solicitor and (perhaps after some hiatus) engages another solicitor often very close to trial or even on the eve of trial.  Access to the original solicitor’s file is sometimes difficult to achieve but problems of time and access do not of themselves justify an adjournment.

Wilcox C.J. and his most senior judge, Northrop J., have indicated that in this very busy jurisdiction of unlawful terminations under Division 3 of Part VIA the earliest hearing dates reasonably available should be set rather than allow parties or their representatives to choose later dates.

While it is necessary to take an account of the position of parties and, to some extent, their wishes, prior to fixing trial dates, if it appears that cases can be heard without unfairness (as distinct to mere inconvenience) earlier rather than later dates must be chosen in the public interest and in the interest of justice.

Parliament clearly intended (by its emphasis on reinstatement) that unlawful termination claims should be determined quickly.  The delays and elaborate preparation accepted in major commercial litigation is not acceptable in these cases.

This position was clearly enunciated by Northrop J. in Hobart on 30 August 1994 in Mahnken the Saunders Logging Pty Ltd case No. TI 109/1994 (unreported) when he said

“I should indicate also, as a matter of information to those who are interested in this area, that the practice of the Court in cases of this kind where a certificate is given by the Industrial Relations Commission that no settlement has been reached is that the matter should be listed for hearing as speedily as possible after that certificate has been given.  Under the rules applicable to this type of case, the applicant must specify by affidavit a summary of his or her claim, the respondent must then state by affidavit the substance of the defence if the unlawful termination is disputed and there is then a conference before the Industrial Relations Commission at which it is important that the applicant and somebody who can speak with authority on behalf of the respondent is present.  As a result of all those procedures, it should be obvious to the parties what the issues are between them and it is only in the rarest of cases that the Court will give directions as to any further interlocutory steps such as pleadings and further affidavits.  Normally, arrangements will be made to have a date fixed for hearing as early as possible.

These are in circumstances where the Parliament has created a new type of remedy, a remedy which should be made available as quickly as possible where an employee’s employment has been terminated.  Reinstatement may be an order that is made.  If such an order is to be made, it should be made as speedily as possible”.

In this case today substantial information of the position taken by both the applicant and the respondent is available and has been available since 4 August. The late consideration now by a new solicitor of what can be put no more highly than potential action for possible breaches of an award under Section 178 in no way justifies an adjournment with a view to linking such possible action with the present application. I do not make and would not make any findings or comments on possible action under S178 and S179 but none of that justifies adjourning an application filed on 28 June 1994.

I also repeat what I said on 13 October 1994 when refusing an adjournment in the case of Bugeja v. Westhall Enterprises (VI-374 of 1994)

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

There is another issue which I’ve taken into account and that is the business of the 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 in the list.  I will concede that it may be possible to bring a case on again on 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”.

Those comments apply with just as much force in this case and the application for adjournment is refused.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :              
Date  :              24 November 1994
Appearances:
Counsel for the Applicant                 :              N.J. Kenyon
Solicitor for the Applicant                 :              Slater and Gordon
Counsel for the Respondent             :              G.W. Robertson
Solicitor for the Respondent             :              Edward R. Oates
Date of Hearing  :              24 November 1994

Judgment  :              24 November 1994