Peter James McKay Watson v Royal Selangor (Aust) Pty Ltd

[1995] IRCA 596

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2054 of 1995

B E T W E E N:

Peter James McKay WATSON
Applicant

A N D

ROYAL SELANGOR (AUST) PTY LTD
Respondent

REASONS FOR DECISION

9 November 1995  PARKINSON JR

This is a decision in relation to a notice of motion filed by the applicant seeking various orders in relation to an application made on 16 March 1995 pursuant to S170EA of the Industrial Relations Act 1988. The orders sought in the motion were that the proceeding be taken out of the list for hearing on 14, 15 and 16 November 1995 and that the application be struck out with leave reserved to apply to reinstate the proceedings in certain circumstances. The stay is sought for the purpose of enabling the applicant to seek to establish and enforce alleged terms of settlement in relation to the application, which enforcement was the subject of an earlier decision which is referred to shortly.

This proceeding has been the subject of previous rulings and decisions in relation to the conduct of the case and various jurisdiction matters. On 4 July 1995 on a notice of motion filed by the applicant, I decided that in the circumstances it was not convenient to hear and determine the question of whether there had been an agreement between the parties for settlement. The fact of settlement continues to be in dispute between the parties. In the course of that decision I also determined a jurisdiction point and dismissed a motion by the respondent that the S170EA application be dismissed. That latter aspect of the decision was the subject of a review pursuant to S376 of the Act filed by the respondent on 25 July 1995. The review was abandoned at directions before Justice Marshall on 16 October 1995, and consequently the S170EA application was returned to the directions list for setting down for hearing.

On 24 October 1995 at a directions hearing, I made orders by consent for the future programming of the S170EA application. These orders included that there be mutual discovery 14 days prior to the date of the trial, and that the applicant provide 14 days prior to the date of the trial particulars of the claims made for outstanding superannuation, long service leave and other entitlements. The directions made were not complied with by the applicant.

On 31 October 1995 the solicitors for the applicant wrote to the respondent’s solicitors seeking consent for the adjournment of this application sine die. By letter dated 1 November 1995 the respondent refused such consent. The applicant on 3 November 1995  then brought this application for the proceedings to be struck out with liberty to apply for reinstatement of the proceedings in the event that he was unsuccessful in enforcing the alleged terms of settlement.

In this decision it is necessary to balance the two competing factors of the prejudice to the respondent by any further delay in the hearing and determination of the S170EA application, as against the prejudice to the applicant in requiring him to proceed to run his case in relation to the termination of the employment.

The purpose of this legislation is to provide a remedy in relation to an unlawful termination of employment and I am guided by the principal purpose of the legislation in this regard. I am of the view that a timely conclusion to proceedings of this nature is fundamental. The nature of the legislation is such that the proceedings ought be concluded with some speed and efficiency, particularly in view of the remedies which may be ordered.  This is an approach which has been taken and endorsed by various judges of this Court. In Mahnken v Saunders Logging Pty Ltd (1994) 57 IR 237 his Honour Justice Northrop said at 237:

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. 

To make an order of the type sought by the applicant would result in the S170EA application remaining unresolved for a considerable period of time. Whilst I appreciate that the applicant is seeking to preserve his rights in relation to these proceedings whilst pursuing in another place the alleged agreement for settlement, the prejudice to the respondent of such a delay is unacceptable in relation to the proceedings pursuant to S170EA and is inconsistent with the objects and purpose of the legislation.

During the course of the proceedings I raised with counsel the decision of Wilcox CJ in Kenneth Purdue and AWU-FIME & Ors v Brown & Hatton Rural Pty Ltd & Ors ( 411/95, unreported,  30 June 1995), and in particular whether there was any aspect of that decision relevant to the future progression of this matter.  Neither counsel submitted that the decision was of assistance in the present circumstances.

Having regard to the matters discussed herein, I refuse the application and dismiss the notice of motion filed on 3 November 1995.  

The Orders of the court shall be:

1. The notice of motion filed on 3 November 1995 is dismissed.

2. That the directions made on 24 October 1995 requiring the applicant to
              make discovery of documents and particulars of claim be set aside
              and that the applicant make discovery of all documents upon
              which he intends to rely in the proceeding on or before 10.00 am
              Tuesday 14 November 1995, and provide particulars in respect of
              the claim for long service leave and superannuation on or before
              4.00 pm  Monday 13 November 1995. 

3. That the hearing commence at 2.00 pm on Tuesday 14 November
              1995 and continue on 15 and 16 November 1995.
              .

I certify that this and the preceding three (3) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate:
Dated:  9 November 1995

APPEARANCES

Solicitor for the applicant:  R Murley
Counsel appearing for the applicant:                   Mr J Bourke

Solicitors for the respondent:  Rigby Cooke

Counsel appearing for the respondent:               Mr A Lindeman

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2054 of 1995

B E T W E E N:

Peter James McKay WATSON
Applicant

A N D

ROYAL SELANGOR (AUST) PTY LTD
Respondent

MINUTES OF ORDERS

9 November 1995  PARKINSON JR
THE COURT ORDERS THAT:

1. The notice of motion filed on 3 November 1995 is dismissed.

1. That the directions made on 24 October 1995 requiring the applicant to
              make discovery of documents and particulars of claim be set aside
              and that the applicant make discovery of all documents upon
              which he intends to rely in the proceeding on or before 10.00 am
              Tuesday 14 November 1995, and provide particulars in respect of
              the claim for long service leave and superannuation on or before
              4.00 pm  Monday 13 November 1995. 

1. That the hearing commence at 2.00 pm on Tuesday 14 November
              1995 and continue on 15 and 16 November 1995.

NOTE:  Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - application to strike matter out with a right of reinstatement for the purpose of enabling the applicant to seek to establish and enforce alleged terms of settlement in relation to the application 

Industrial Relations Act 1988, ss 170EA, 376

Mahnken v Saunders Logging Pty Ltd (1994) 57 IR 237
Kenneth Purdue and AWU-FIME & Ors v Brown & Hatton Rural Pty Ltd & Ors ( Wilcox CJ,  411/95, unreported,  30 June 1995)

PETER JAMES MCKAY WATSON v ROYAL SELANGOR (AUST) PTY LTD

VI 2054 of 1995
Before:  PARKINSON JR
Place:  MELBOURNE
Date:  9 NOVEMBER 1995