Schaale, B. v Hoescht Australia Ltd

[1993] FCA 578

5 7 % , 9 3

JUDGMENT No. ........ ....... .. ooololHm

T N 'PHE FEDERAT. COURT OF ATISTRAT,TA	)
VICTORIA DISTRICT REGISTRY	No. V187 of 1991
GENERAL DIVISION	1
B E T W E E N :

BODO SCHAALE

Applicant

HOESCHT AUSTRALIA LIMITED

Respondent

JUDGE :	Heerey J
DATE:	3 ~ugust  1993 RECEIVED
PLACE :	Melbourne  FEDERAL COURT OF

PRINCIPAL

REASONS FOR JUDGMENT

On 29 March 1993 I gave judgment in favour of the applicant on the issue of liability and made a declaration that the termination by the respondent of the employment of the applicant on 15 August 1991 was harsh, unjust an6 unreasonable and a breach of the relevant award. A further hearing of the application was adjourned. On 16 April the respondent lodged a notice of appeal against that decision and that appeal will be called over for listing on 19 August and in all probability

earlier Full Court decision in Gregory v Philip Morris Limited	(1988) 80 ALR 455 which is presently the basis for the right
of damages for termination of employment in breach of an award provision. The parties then agreed, I think it is fair to say, to not press the further hearing of the damages issue pending the outcome of the decision in Byme's case.
The decision in Byrne's case has still not yet been delivered. The applicant now seeks that the damages issue be listed for hearing. It would seem, after discussion with counsel, that the damages issue could be resolved in a trial of two days or less.
Counsel agreed that it is probably desirable, although not essential, that I hear the damages trial. If that were to be the case I have commitments which extend beyond the time fixed for the hearing of the appeal on the issue of liability.
It seems to me in all the circumstances that I should not accede to the applicant's request. There has, it is true, been delay which is understandably of concern to the applicant
but that has occurred largely because of the decision that the
parties took when I delivered judgment.
The holding of the damages trial now, quite apart from the practical difficulty of listing it before me or indeed before any other judge in the immediate future, would be that any award would, in substance, be provisional only. Realistically the applicant could not expect to receive the money until the appeal on the issue of liability was resolved. Moreover, as counsel for the respondent reminded me by reference to the transcript, the possibility of appeals was adverted to at the commencement of the case when there was debate whether the issue of liability should be tried separately. Thus it was a matter that was specifically brought to the attention of the parties at the time.
Although the respondent has out of an abundance of caution filed an application for leave to appeal, my initial impression is that the respondent has an appeal as a right because the judgment I gave was in terms of a declaration as to the lawfulness of the termination. That being so, the respondent has the right to pursue an appeal and has been doing so with appropriate expedition.
The non-resolution of the issue in Byrne's case is relevant but not to my mind of great weight because, were it not for
the other factors I have mentioned, 1: think the parties are
entitled to have their case heard notwithstanding there is
or judicial decision. But practically speaking, the major some risk that the law may be changed whether by legislation
consideration is that the applicant is not likely to gain any real advantage by a direction that the damages trial be heard now, bearing in mind, the delay that would occur anyway before that could happen and the fact that the fruits of any judgement could not be immediately enjoyed by him.
What I will do, however, is to give an indication that there should be a speedy trial of the damages issue if the appeal is resolved in favour of the applicant. That should occur notwithstanding the possibility that the decision in Byme's
case might still be reserved at that time. It may be that to give effectiveness to that direction some other judge would have to hear the damages trial but that is a matter that perhaps can be considered when the time comes. I will therefore not make any order listing the damages trial for an immediate hearing.
heard in the October sittings of the Full Court.	1'

When judgment was given I discussed with the parties the future progress of the matter and informed them of the current appeal in Byrne v Australian Airlines in which a Full Court of five had been constituted to reconsider the correctness of the

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgnent of his Honour Mr Justice Heerey.

Dated: 3 Ausust 1993

Appearances

Counsel for the applicant:	Mr K Bell
Solicitor for the applicant:	Taylor & Scott

Counsel for the respondent:	Mr T Ginnane
Solicitor for the respondent:	Freehill, Hollingdale and Page
Date of hearing:	3 August 1993

JUDGES CHAMBERS,

FEDERAL COURT OF AUSTRALIA

450 LITTLE BOURKE S-ET,

Jx AUSTRALIA r	'
-Jj>>>>>>x<<<<cLC-	MELBOURNE. 3000

24 August 1993

Elizabeth Harrison
Federal Court of Australia
Principal Registry
Law Courts Building

Queens Square

SYDNEY NSW 2000

Dear Elizabeth,

Re:  Bodo Schaale v Hoescht Australia Limited

No. V1 87 of 1991

I enclose a copy of the judgment delivered by his Honour Mr

Justice Heerey in the above matter on 3 Ay.p+/9?3.
This judgment is not for general distribution.

Yours sincerely,

i .-

David Brennan

Associate to Heerey J

enc.

I