PAM Coker-Godson v National Dairies Limited

[1995] IRCA 348

CATCHWORDS

INDUSTRIAL LAW - UNFAIR TERMINATION - omission of evidence  - whether the respondent should be granted leave to re-open its case.

Industrial Relations Act 1988, s377, 170EE, 170DE

R v  Chin (1985) 157 CLR 671, 677
Reynolds v Bogan Holdings [1984] 36 SASR 193
Murray v Figge (1974) 4 ALR 612, 614
Urban Transport Authority v Nweiser (1992) 28 NSWLR 471, 476-479

No. VI  0262R of 1994

PAM COKER-GODSON v NATIONAL DAIRIES LIMITED

MARSHALL J
MELBOURNE
3 August 1995

IN THE INDUSTRIAL RELATIONS COURT            )  
  )  )  

OF AUSTRALIA  )  

)  No. VI 0262R of 1994  

VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  PAM COKER-GODSON

Applicant

AND:  NATIONAL DAIRIES LIMITED

Respondents

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:      3 August 1995

ORDER

THE COURT ORDERS THAT:

1. The respondent’s application for leave to re-open its case is granted.

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  )  

)  No. VI 0262R  of 1994  

VICTORIA DISTRICT REGISTRY  )  

BETWEEN:  PAM COKER-GODSON

Applicant

AND:  NATIONAL DAIRIES LIMITED

Respondent

JUDGE:     Marshall J

PLACE:     Melbourne

DATE:       3 August 1995

REASONS FOR JUDGMENT

I am currently hearing a matter under s377 of the Industrial Relations Act 1988 (“the Act”) in which the respondent seeks to review the decision of a Judicial Registrar and consequent orders including an order that the respondent pay the applicant compensation in the sum of $15,499.90.

At 12.38 pm yesterday counsel for the applicant, Mr Kenyon, concluded his submissions in the review.  Counsel for the respondent, Mr Wheelahan, had earlier completed his submissions and it only remained for him to reply for the matter to be concluded subject to the decision of the Court in the review.

However, Mr Wheelahan, upon the conclusion of Mr Kenyon’s submissions, made an application to re-open his case and re-call a witness who had earlier given evidence in the review, a Mr Sasse.  Mr Wheelahan submitted that Mr Sasse would give evidence, if re-opening was permitted, to the effect that the respondent did not operate premises at Chelsea Heights, which had been the subject of Mr Sasse’s evidence, but that a related company operated the premises.

It is most unfortunate and regrettable that this evidence is sought to be adduced at this very late stage of the proceedings when the evidence of Mr Sasse last Tuesday and before the Judicial Registrar was that the respondent operated the Chelsea Heights premises.

There is much authority in criminal cases dealing with whether a Court should permit a re-opening of a case.  For example, in R v Chin (1985) 157 CLR 671, 677, Gibbs CJ and Wilson J said:

“... the principle is not a rigid one and there are cases in England that suggest that a trial judge has a discretion to allow evidence relevant to the prosecution’s case to be given in rebuttal if, for some reason, it was not available to the prosecution until after it had closed its case.... It would seem unduly technical to exclude altogether evidence that was not in the possession of the Crown until after it had closed its case, and the judge may by the exercise of his discretionary powers prevent any unfairness to the accused from arising.”

In Reynolds v Bogan Holdings [1984] 36 SASR 193, Bollen J of the Supreme Court of South Australia, in holding that a Magistrate had properly exercised his discretion to refuse leave to re-open the case for a complainant, said at 201 that:

“It is the interests of justice which must govern the exercise of the discretion.”

The relevant authorities in civil cases are not so numerous.  However, in Murray v Figge (1974) 4 ALR 612, 614 Muirhead J of the Supreme Court of the Northern Territory held in the course of a civil proceeding that fresh evidence which was not tendered due to counsel’s inadvertence should be admitted “on conditions which ensured no prejudice to the other party by reason of its introduction at a late point in time and provided always that interests of justice so require”. See also Urban Transport Authority v Nweiser (1992) 28 NSWLR 471, 476-479.

In the matter before me, Mr Kenyon for the applicant presses for an order that the applicant be reinstated in accordance with s170EE(1)(a)(ii) of the Act.

Pursuant to s170EE(2) of the Act the Court, if it finds that there has been a relevant contravention of Division 3 of Part VIA of the Act, is obliged to consider whether “reinstatement of the employee is impracticable”.

The evidence that the respondent wishes to adduce by way of re-opening will have a direct bearing on my consideration of s170EE(2) should I decide that a relevant contravention of Division 3 of Part VIA of the Act has occurred. Such evidence may also be relevant to the issue as to whether s170DE(2) was applicable in the circumstances.

Therefore, in the interests of justice but not without some reluctance, I will grant leave to the respondent to re-call Mr Sasse.  That evidence will be given at 9.30 am tomorrow.  I have been assured by Mr Wheelahan that it will be brief.  Given the leave granted by the Court to the respondent I now indicate that the Court would be prepared, if necessary, to permit the applicant to give evidence on any matter which arises out of the further evidence of Mr Sasse.  I would expect that such evidence would also be brief.

I certify that this and the preceding (2) pages are a true copy of the Reasons for Judgment herein of His Honour Justice Marshall.

Associate:

Date:  3 August 1995

Counsel for the Applicant:  Mr N Kenyon

Solicitor for the Applicant:               Maurice Blackburn & Co

Counsel for the Respondent:           Mr M. F. Wheelahan

Solicitor for the Respondent:           Arthur Robinson & Hedderwicks

Date of hearing:  1, 2 & 3 August 1995

Date of judgment:  3 August 1995