Phillip Davis and Portseal Pty Ltd

[1996] IRCA 9

In the Industrial Relations
Court of Australia
New South Wales District Registry  Matter No: NI 95/3829

Between:  Phillip DAVIS
  Applicant

And:  Portseal Pty Ltd
  Respondent

Coram:              Tomlinson JR
Place:                Sydney
Date:                  30 January 1996

Reasons for decision delivered Ex-Tempore revised from Transcript

This is an application by the respondent, Portseal Pty Limited, made by Mr Harris on its behalf to vacate the hearing date in the application of Phillip Davis for compensation for unlawful termination.  Mr Coleman of counsel represented the applicant and resisted the application to vacate.  In support of the application to vacate the hearing date an affidavit was filed by Mr Harris that stated:

“At the directions hearing in this court on 24 November 1995 a hearing date, being 31 January 1996, was assigned to this claim.”

Paragraph 2 of the affidavit of Mr Harris filed in this court on 24 January states that:

“On my return from annual leave on 22 January 1996 I have been informed that the two representatives of the company who would provide evidence on behalf of the respondent, Messrs Ian Dale, principal dealer and Jim Keepkie, General Manager, are overseas until a date in March in 1996.”

In support of that information Mr Harris handed up a letter on letterhead from an organisation noted as being NAASA Travel signed by a Sylvia Logan at Cairns purporting to confirm that Mr Ian Dale departed Australia for the USA on Monday, 29 January and secondly, that Mr William Keepkie is to depart Australia on Saturday, 3 February.

Objection was taken by Mr Coleman to the court considering that information or even accepting that letter on the basis that the information fell into the category of hearsay and I have to say I agree with that assertion and it is my understanding that a court in deciding matters must take the best evidence available and that the person signing this letter was not available to be cross-examined as to the veracity of the statements contained therein.  In resisting the application to vacate the hearing date an affidavit of the applicant was filed in this court, handed up by Mr Coleman.  In relation to the information contained in the NAASA Travel document dated 29 January, paragraph 5 of the affidavit of the applicant sworn 29 January 1996 indicated that the applicant received the information that one of the witnesses does not leave the jurisdiction of this court until Friday.

The applicant is in court and available to give sworn evidence as to the information in his possession.  Secondly, paragraph 2 of that affidavit of the applicant stated that in March 1995 he attended a management convention at Surfers Paradise and at that convention arrangements were made for the applicant, Mr Ian Dale and Mr Jim Keepkie to go overseas at this particular time.  In other words, it is the applicant’s belief, according to the affidavit, that the travel arrangements keeping the two principal witnesses out of the jurisdiction were in fact known to these men many, many months ago.

Accordingly, in resisting the application to vacate, Mr Coleman stated that it is more than likely that the respondent was in a position to know its movements when the date for hearing of this matter was fixed at a call-over in November of 1995.  Having considered the information before the court, I disallow the application of the respondent to vacate the hearing date and order that the matter proceed as listed.

It is noted that Mr Harris was here for the call-over on 24 November 1995.  It can be concluded that the respondents accordingly were notified very shortly thereafter of this hearing date taking place on 31 January and that in spite of that notification it would seem that travel arrangements were put into place or not avoided or cancelled and it is obvious that no steps were taken to make earlier arrangements in order that the business of the court could be dealt with appropriately.  I am concerned that there are allegations in the workplace that might affect the future earning capacity of the applicant and it is a policy of this court to deal with matters expeditiously in a regular fashion.

I turn now to the application of Mr Coleman for costs on behalf of the applicant incurred in defending the notice of motion today.  In having considered the circumstances and particularly noting the fact that it is more than likely that as from November or the end of last year the respondent would have been aware of the hearing date and noting the lateness of the hour that this application is brought and the position in which the applicant found himself at the eleventh hour, I order the costs of the day to be met by the respondent in accordance with the Federal Court scale.

Minutes of Order

The Court orders that:

1. That the Notice of Motion of the Respondent be dismissed.

1. The applicant’s costs of the day be met by the Respondent in accordance with the Federal Court scale.

Note:  Settlement and entry of orders is dealt with in Order 36 of the Industrial Relation Court Rules.

I certify that this and the preceeding two (2) pages are a true and correct record of the reasons for decision of Judicial Registrar Tomlinson delivered ex- tempore.

Associate:

Date:               31 January 1996

Appearances

Counsel for the Applicant:        Mr P.C. Coleman

Counsel for the Respondent:     Mr G.Harris

of:  Motor Traders Association of New South Wales.