Hofmeister v SPI (R&D) Pty Limited
[1996] IRCA 333
•03 July 1996
DECISION NO: 333/96
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - application for ADJOURNMENT OF PROCEEDINGS - non-appearance of applicant - COSTS
Industrial Relations Act 1988, ss 170EA, 170CD, 347
O. 62 r. 1(c)
Genneff v Peterson & Ors. (1986) 19 IR 40
EDDIE HOFMEISTER v SPI (R&D) PTY LIMITED
VI 5956 of 1995
Before: PARKINSON JR
Place: MELBOURNE
Date: 3 JULY 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5956 of 1995
B E T W E E N:
Eddie HOFMEISTER
Applicant
A N D
SPI (R and D) PTY LIMITED
Respondent
MINUTES OF ORDER
3 July 1996 PARKINSON JR
THE COURT ORDERS THAT:
The applicant’s application for an adjournment is refused.
The proceeding is dismissed.
The applicant to pay the respondent’s costs of the proceeding incurred to date such costs to be settled by the Registrar of the Court pursuant to O. 62 r. 1(c) of the Rules of Court.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5956 of 1995
B E T W E E N:
Eddie HOFMEISTER
Applicant
A N D
SPI (R and D) PTY LIMITED
Respondent
REASONS FOR DECISION
(delivered ex tempore)
3 July 1996 PARKINSON JR
This is my decision in relation to an application made pursuant to section 170EA of the Industrial Relations Act 1988. The application has been listed for trial set down for hearing on this day. There is an appearance on behalf of the respondent in these proceedings, however there is no appearance on behalf of the applicant. The respondent seeks that the proceedings be dismissed. The grounds upon which the respondent seeks such dismissal include the applicant's non-attendance this day together with the fact of an application made by the applicant for adjournment of the hearing which disclosed no basis for an adjournment.
The adjournment application which purports to be made by the applicant in correspondence to the court disclosed no specific time in respect of which the Court could be satisfied that the applicant would be able to attend on further proceedings. The respondent points to the conduct of the applicant in the period between the date of the directions hearing where this matter was listed for hearing and this day, including the failure to comply with orders of the Court in respect of discovery. The Court's attention has also been drawn to the fact that the applicant is not apparently able to be contacted by the respondent at any residential or postal address.
The applicant's communication to the Court is dated this day, 3 July 1996. In that communication which was sent by facsimile at 9.38am this day the applicant seeks an adjournment on the basis of current financial difficulty. But, save for that matter, the applicant raises no other matter in the content of the correspondence which would suggest he was precluded from attending at the Court this day, or which would suggest that he was precluded from appearing on his own behalf in these proceedings.
I have taken into account that fact together with the fact that the applicant has not notified the respondent of any change of address or convenient number on which he could be contacted, nor has he apparently notified his solicitors of such changes. I have further noted that the correspondence sent to the Court by the applicant does not disclose any return address or place for written communication between the Court and the applicant.
Having heard counsel for the respondent and having looked at the material on the file, I have decided that it is not appropriate to grant the application made by the letter dated 3 July 1996 to adjourn these proceedings. I decline the application for an adjournment of the proceedings. In view of the non-appearance of the applicant upon these proceedings, I am ordering that the proceedings be dismissed.
An application has been made by the respondent pursuant to section 347 of the Industrial Relations Act for an order for costs against the applicant. The application is made on the grounds that the application made pursuant to section 170EA of the Act was vexatious or without reasonable cause.
It is submitted that there are substantial jurisdictional barriers to these proceedings, and that those matters were apparent and ought to have been apparent to the applicant at the time of initiating the proceedings. I am satisfied, having regard to the evidence of Mr Wilson, a director of the respondent and also its accountant, together with the document which is exhibit R1 in the proceedings, that the applicant had no reasonable prospect of success in these proceedings having regard to the substantial barriers arising from the operation of section 170CD.
I am satisfied that the applicant was in receipt of relevant wages in excess of the sum prescribed by section 170CD(ii) of the Act. The applicant was in receipt of a sum of $69,454.00 in relevant wage receipts, together with additional amounts by way of benefits. I have been referred to the various authorities in this Court wherein the approach to be taken to the application of the phrase: “Proceedings being instituted vexatiously or without reasonable cause” have been canvassed, including the decision of his Honour Justice Gray in Genneff v Peterson & Ors. (1986) 19 IR 40. I accept that this is such a circumstance and I am of the view that these proceedings have been instituted without reasonable cause in view of the substantial jurisdictional barriers to the applicant, which were barriers in existence and apparent from the date and at the date of the institution of these proceedings. On that basis, I propose to make an order that the applicant pay the costs of the respondent incurred to date in respect of these proceedings. Those costs are to be settled by the Registrar of the Court pursuant to the O. 62 r. 1(c) of the rules of the Court.
I certify that this and the preceding three (3) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson delivered ex tempore
and revised from the transcript.
Associate:
Dated: 3 July 1996
APPEARANCES
No appearance for the applicant
Counsel appearing for the respondent: Mr G Moore
Solicitors for the respondent: J.M. Smith & Emmerton
Date of hearing: 3 July 1996
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