Muininder Sandhu v Pacific Dunlop Tyres Pty Ltd and Goodyear Tyres Pty Ltd (T/As South Pacific Tyres)

[1995] IRCA 269

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  VI 1891 of 1995
VICTORIA DISTRICT REGISTRY

B E T W E E N:

Muininder SANDHU
  Applicant

A N D

PACIFIC DUNLOP TYRES PTY LTD and GOODYEAR TYRES PTY LTD (t/as South Pacific Tyres)
  Respondent

VI 1933 of 1995

B E T W E E N:

Jonce STANKOVSKI
Applicant

A N D

PACIFIC DUNLOP TYRES PTY LTD and
GOODYEAR TYRES PTY LTD (t/as South Pacific Tyres)
Respondent

VI 1890 of 1995

B E T W E E N:

Joginder PAUL
Applicant

A N D

PACIFIC DUNLOP TYRES PTY LTD and
GOODYEAR TYRES PTY LTD (t/as South Pacific Tyres)
Respondent

Reasons for Judgment
(delivered ex tempore - revised from the transcript)

2 June 1995  PARKINSON JR

On behalf of each of the applicants in matters numbers 1890 of 1995, 1891 of 1995 and 1933 of 1995, an adjournment application has been made this day in respect of the matters which are the subject of the notices of motion filed by the respondents on 26 May 1995.  Having heard counsel for the applicants in particular, in relation to the prejudice which would be accorded to the applicants were an adjournment not granted, and having regard to the fact that there is no material in support of any case that may be put by the applicants that their application should not be dismissed for being out of time, I have decided to adjourn the proceedings.

This adjournment is granted to ensure that the applicants in those matters are accorded the requisite level of fairness.

However, I am satisfied that the respondent filed and served the notices of motion in relation to today’s application for dismissal of the proceedings within time and in accordance with the rules of court.  I am not satisfied on any of the material that is before me on behalf of the applicants that there was good or sound reason for the applicants not being a position to be able to proceed today in respect of those applications for dismissal. 

There is no material before me that satisfies me that the reasons given have been, or are, sufficient.  I am satisfied, on the material before me, that the adjournment has become necessary as a result of the conduct of the solicitors for the applicant in the proceedings.

Having regard to that fact, and the following matters:  (1) the absence of all of the applicants at today's hearing;  (2) the absence of the applicants’ instructing solicitor at today's hearing;  and (3) the absence of any significant or sufficient affidavit material on behalf of the applicants, I have decided to order costs of today's proceeding thrown away.  Those costs are to be paid by the solicitors for the applicants in the proceedings and I propose to set costs of the day pursuant to O 62 r.6 of the rules of court.  I exercise this power arising out of the inherent jurisdiction of the court to manage its proceedings in an efficient and orderly way, and in this regard the parties are referred to the decision of the Chief Justice in Nicolson v Heaven and Earth Galleries Pty Limited (1994) 126 ALR 233. There have been further considerations of this inherent power by other judges of this Court. See also in this regard the decision of Moore J in Canceri v Taylor (1994) 55 IR 316.

I have heard Mr McDonald's submission in relation to the amount of costs thrown away on these proceedings.  I am not satisfied that the amount of $1500 is an appropriate amount to set, having regard to the length of time of these proceedings have taken  this day, and I propose and direct that the costs thrown away be set at the amount of $1000.  Those costs set at that amount encompass counsel's fees and solicitor's costs of the day.  Those costs are payable within 28 days of today's date.

I propose to adjourn this matter, that is the matters that are the subject of the notices of motion in these proceedings to Friday, 7 July 1995 commencing at 9.30 am.  On that day I will deal with the matters which are the subject of this notice of motion.  I further indicate to the parties that these and any matters outstanding in relation to these matters will be heard and determined, together with any other matters relating to this respondent arising out of the same substratum of facts, on Wednesday 12, Thursday 13, and Friday, 14 July 1995.  Those matters are set down, therefore, in so far as they remain in the Court for hearing on those days, together with any other related matters.

I certify that this and the preceding two (2) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson  as recorded in the
draft trancsript and revised by the Judicial Registrar.

Associate:
Dated:  2 June 1995

Solicitors for the applicant:  Patrick Robinson & Co
Counsel appearing for the applicant:  Mr M Garnham

Solicitors for the respondent:  Freehill Hollingdale & Page
Counsel appearing for the respondent:  Mr M McDonald