Jaymie Brian Ellis v Conaust Ltd
[1995] IRCA 347
•24 July 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VI95/2211
B E T W E E N:
JAYMIE BRIAN ELLIS Applicant
AND:
CONAUST LTD Respondent
COURT: MILLANE JR
PLACE: MELBOURNE
DATE: 24 JULY 1995
REASONS FOR DECISION
On the hearing of a Notice of Motion filed 19 July 1995 by the Applicant and returnable on 24 July 1995 I made the following orders that:
Leave be granted to Messrs Godfrey Stewart to file and serve notice of change pursuant to Sub-Rule 7 of Order 45 of the Industrial Relations Courts Rules;
The hearing date on 24 July 1995 of proceeding number VI95/2211 be vacated;
The proceeding be adjourned to the directions list for call-over on 5 September 1995;
On or before 23 August 1995 the Applicant notify the Respondent in writing of the provisions of Division 3 Part VIA of the Industrial Relations Act 1988 he alleges have been contravened by the Respondent;
There be liberty to the parties to apply on the giving of reasonable notice; and
The question of the Respondent’s costs thrown away by reason of this Notice of Motion application be reserved.
In an application filed with the Court on 27 March 1995 pursuant to Division 3 Part VIA of the Industrial Relations Act 1988 (the Act) the Applicant alleges that his employment with the Respondent was unlawfully terminated on 23 February 1995. He seeks (a) reinstatement; (b) compensation; and (c) an extension of time for making his application under section 170EA(3) of the Act.
The abovementioned application was the subject of a directions hearing attended by the Applicant in person on 6 June 1995 at which time the proceeding was fixed for hearing on 24 July 1995. On 19 July 1995 solicitors, Godfrey Stewart, gave written notice to the Court of that firm’s appointment as the Applicant’s solicitors.
On 19 July 1995 the Applicant’s Notice of Motion was filed with the Court together with two supporting affidavits, the first of which was sworn by the Applicant on the same date, and, the second of which, was sworn by James Robb Crawford Turnbull, a solicitor employed by Godfrey Stewart on 19 July 1995. The Notice of Motion sought:
1. That this matter be taken out of the list for hearing on Monday, 24 July 1995 and be referred to the Registrar for re-fixing on or after 4 September 1995.
2. The costs of this application be costs in the cause.
3. Such further or other orders as the Court thinks appropriate.
On the morning of the return of the Notice of Motion the solicitors acting for the Applicant filed a document entitled ‘Notice by Solicitors Ceasing to Act’. On the return of the Notice of Motion the Applicant appeared in person to seek the orders set out in the Notice of Motion and Mr Turnbull from Godfrey Stewart appeared to seek pursuant to Order 45 of the Industrial Relations Court Rules the leave of the Court to withdraw as the solicitors on the record. The Applicant consented to Godfrey Stewart’s application. Accordingly, leave was granted to this firm to withdraw. The affidavits in support of the orders sought in the Notice of Motion in so far as they are relevant to the application for an adjournment of the hearing date, set out a number of matters relied on as justifying delaying the hearing. For the purpose of deciding this application I ignored the matters raised in paragraphs 2 to 16 inclusive of the Applicant’s affidavit. This is because I accepted in substance the submission made by Mr Barton, appearing on behalf of the Respondent, to the effect that the facts deposed to in those paragraphs, whilst they may be relevant to the Applicant’s claim for an extension of time within which to make his principle application under the Act, are not matters occurring after the proceeding was set down for hearing and cannot, in themselves, provide a foundation for the application made by Notice of Motion.
So far as the Notice of Motion is concerned the Applicant deposes to having obtained a referral to a solicitor from the Law Institute in late June/early July 1995 following which referral he attended upon and instructed Godfrey Stewart, solicitors, to act for him on 18 July 1995. Significantly, prior to obtaining legal advice from the solicitors to whom he was referred, the Applicant took steps to, first, comply with a direction made at the directions hearing requiring him to exchange copy documents he intended to rely upon at hearing as well as a direction that he exchange a list of witnesses to be called at the hearing. Secondly, the Applicant set about trying to serve subpoenas on witnesses he intended to call. He was successful in serving one witness, Jenny Simpson, who is apparently an employee of the Respondent. However in respect to the second witness, Sandra Ryan, another employee of the Respondent he was unable to serve this witness to the date of hearing.
The Applicant deposed to a number of attempts to serve Ms Ryan from about 10 July 1995 to 15 July 1995. Those attempts included an attendance at the Respondent’s offices and numerous telephone calls to ascertain whether the witness was present for service. The attempts were frustrated by Ms Ryan’s unavailability. On Friday, 15 July 1995 the Applicant was advised by telephone that in that week Ms Ryan had been unavailable due to ill health and, in the week commencing Monday 17 July 1995, she would be absent in Sydney for the week.
The Respondent challenged the Applicant’s failure in his affidavit to explain why Ms Ryan was a material witness and further to identify the persons responding to the telephone enquiries made by him of the Respondent concerning this witness.
On the question of the materiality of this witness the Court was informed that the Applicant’s employment was terminated on 23 February 1995 after an absence from work for some 9 to 10 months. In that period the Applicant had been on 10 weeks authorised leave and, after an accident in a supermarket, it is alleged that he did not return to work as required on 8 August 1994. According to the Respondent there was discussion between the employer’s doctors and the Applicant’s treating doctor which resolved on the basis that the treating doctor agreed the Applicant was fit to make a graduated return to work. It was alleged by the Respondent that the Applicant did not attend work, rather he consulted other doctors. In February 1995 the employer issued an ultimatum to the Applicant requiring his return to work on 23 February to commence a program of rehabilitation or, alternatively, if he did not then believe he was fit to return, he was required to attend a medical examination with the Respondent’s doctor. It is alleged that the Applicant did neither and his employment was terminated because, according to the Respondent, he had abandoned his employment.
It was argued by the Respondent that Ms Ryan had been a return to work officer employed by the Respondent but did not hold that position between August 1994 and February 1995. Ms Simpson did.
It is contended by the Applicant that he did not know that Ms Ryan was not in the relevant position at the time alleged. However despite this he had conversations with Ms Ryan regarding his return to work subsequent to 8 August 1994 and these were conversations relevant to his claim alleging that his employment was unlawfully terminated in February this year.
Taking the abovementioned matters into account and, without hearing the substance of the case, I accept the Applicant’s prima facie argument that Ms Ryan is a material witness. Mr Barton conceded that Ms Ryan was absent in Sydney in the last week before the hearing date fixed by the Court. I conclude from this concession that the Applicant has been precluded from serving the witness with the subpoena issued on 7 July 1995.
The combined effect of the affidavits filed on behalf of the Applicant show that the Applicant was advised by Godfrey Stewart that:
that firm needed time to prepare the hearing;
(ii) Godfrey Stewart required money paid in advance on account of costs, which sum is presently not available; and that Applicant has made application to his superannuation fund for an advance on his funds to cover this amount;
(iii) that medical evidence is required to support the Applicant’s case; and
(iv) that the Applicant should make a further application for legal aid.
No reason was advanced by the Applicant for delaying his presentation to solicitors until three days before hearing even though it is quite apparent that as a lay person he had by then already taken steps to try and prepare his application for trial. The lack of funds to pay for litigation would not of itself normally be sufficient to delay a hearing date agreed to by the Applicant. However, I am satisfied that the Applicant has now on his solicitors advice taken steps in this direction to make funds available. The Applicant told the Court that he intends to make a further application to the Legal Aid Commission pending the outcome of this application before the Court. Again by itself this would not ordinarily be sufficient reason to delay an agreed hearing date.
More significantly, the need to obtain medical reports from treating doctors is a matter which bears on the Applicant’s ability to properly present his case at hearing. This is particularly so where the dispute between the parties concerns in part the Applicant’s capacity to return to his employment duties after 8 August 1994.
Having regard to the abovementioned matters I informed the parties that I would make the orders set out at the commencement of this decision. On the Application of the Respondent a further order was made requiring the Applicant to provide written notification to the Respondent setting out the provision of the Act he alleges the Respondent has contravened. This order was made because the Respondent expressed some confusion and concern as to whether there may also be a claim made by the Applicant pursuant to section 170DF(1) of the Act.
In addition to the abovementioned matters the Respondent asked the Court and I acceded to this application to reserve the question of the Respondent’s costs thrown away by reason of the Notice of Motion application.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Decision of Judicial Registrar Millane.
Associate :
Date : 1 August 1995
Appearances:
Applicant in person
Solicitor for the Respondent : Mr C. Barton
Freehill Hollingdale & Page
Date of Hearing : 24 July 1995
Date of Decision : 24 July 1995
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Notice of Motion seeking to vacate hearing date - adjournment to allow service of subpoena on witness and to obtain medical evidence
Industrial Relations Act 1988, ss. 170EA(3), 170DF(1)
Industrial Relations Court Rules Order 45 Rule 7
JAYMIE BRIAN ELLIS- v -CONAUST LTD
VI 2211 of 1995
Before: Millane JR
Place: Melbourne
Date 24 July 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY No VI95/2211
B E T W E E N:
JAYMIE BRIAN ELLIS Applicant
AND:
CONAUST LTD Respondent
MILLANE JR 24 July 1995
MINUTES OF ORDER
THE COURT ORDERS THAT:
Leave be granted to Messrs Godfrey Stewart to file and serve notice of change pursuant to Sub-Rule 7 of Order 45 of the Industrial Relations Courts Rules;
The hearing date on 24 July 1995 of proceeding number VI95/2211 be vacated;
The proceeding be adjourned to the directions list for call-over on 5 September 1995;
On or before 23 August 1995 the Applicant notify the Respondent in writing of the provisions of Division 3 Part VIA of the Industrial Relations Act 1988 he alleges have been contravened by the Respondent;
There be liberty to the parties to apply on the giving of reasonable notice; and
The question of the Respondent’s costs thrown away by reason of this Notice of Motion application be reserved.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
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