Speiser v Locums Financial Management Pty Ltd

[1996] IRCA 398

DECISION NO:   398/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - SUMMARY DISMISSAL - APPLICATION for SEPARATE TRIAL

INDUSTRIAL LAW - claims in the ASSOCIATED JURISDICTION

MARTIN SPEISER v LOCUMS FINANCIAL MANAGEMENT PTY LIMITED, BRIAN NORMAN CLARKE, PETER RONALD KIDD, JENNIFER ANNE GILLIAN AHEARNE, PAUL THOMAS AHEARNE, MARC AHEARNE, PETER HART

LOCUMS FINANCIAL MANAGEMENT PTY LIMITED v MARTIN SPEISER AND SURENDRA PATHER

NI 2748 of 1995

CORAM:  MADGWICK J
PLACE:     SYDNEY
DATE:      18 APRIL 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY
  No. NI 2748 of 1995

BETWEEN  MARTIN SPEISER
Applicant

AND  LOCUMS FINANCIAL MANAGEMENT PTY LIMITED
First Respondent
  BRIAN NORMAN CLARKE
Second Respondent
  PETER RONALD KIDD
Third Respondent
  JENNIFER ANNE GILLIAN AHEARNE
Fourth Respondent
  PAUL THOMAS AHEARNE
Fifth Respondent
  MARC AHEARNE
Sixth Respondent
  PETER HART
Seventh Respondent

BETWEEN:                 LOCUMS FINANCIAL MANAGEMENT PTY LIMITED
Cross-Claimant

AND  MARTIN SPEISER
First Cross-Respondent
  SURENDRA PATHER
Second Cross-Respondent

CORAM:  MADGWICK J
PLACE:     SYDNEY
DATE:      18 APRIL 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The claims made in paragraphs 6, 7, 8 and 9 of the Amended Statement of Claim filed on 11 October 1995 be tried separately before a Judicial Registrar; and

2. The trial of the remaining issues await the trial of the issue in Order 1 above.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY
  No. NI 2748 of 1995

BETWEEN  MARTIN SPEISER
Applicant

AND  LOCUMS FINANCIAL MANAGEMENT PTY LIMITED
First Respondent
  BRIAN NORMAN CLARKE
Second Respondent
  PETER RONALD KIDD
Third Respondent
  JENNIFER ANNE GILLIAN AHEARNE
Fourth Respondent
  PAUL THOMAS AHEARNE
Fifth Respondent
  MARC AHEARNE
Sixth Respondent
  PETER HART
Seventh Respondent

BETWEEN:                 LOCUMS FINANCIAL MANAGEMENT PTY LIMITED
Cross-Claimant

AND  MARTIN SPEISER
First Cross-Respondent
  SURENDRA PATHER
Second Cross-Respondent

CORAM:  MADGWICK J
PLACE:     SYDNEY
DATE:      18 APRIL 1996

EX TEMPORE REASONS FOR JUDGMENT

MADGWICK J: This is a difficult and a very unusual matter.  The applicant performed work for the first respondent.  There was an issue about whether he was an employee or in some other relationship with the respondent company and, after a time, as a result of a decision of the controllers of the respondent, he was required pre-emptorily to cease performing that work.

The respondent says that the immediate issue which led to that decision on its behalf was that the applicant had caused a subordinate employee to forge the signature of a client of the respondent to whom it provided financial services.  The applicant, without formally admitting that he did that - and nobody seems to anticipate much of an issue on that matter at trial - responds that, such were all the circumstances, including that he was overworked and a certain ethos in the office of the respondent company, that it would be harsh and unfair, assuming he was an employee, that he be dismissed; it being common ground that reinstatement would be impracticable, he should therefore have compensation.

It is foreshadowed that the applicant will be able to produce a witness who will give evidence of a conversation of one of the directors of the respondent in which, allegedly, that director admitted that no other employee would have been dismissed for what that director is said to have regarded as the fortuitous misdemeanour committed by the applicant.  The applicant also says that contractually he was entitled to a considerable amount of notice of a proposed termination of his contracted service and that his termination service was unlawful at common law on that account.  

Those claims, despite the size of the claim for damages for breach of the contractual entitlement to notice, in accordance with my decision in Coulson v Thomas Cook Limited (Industrial Relations Court of Australia, Madgwick J, 5 March 1996, unreported) could be heard by a Judicial Registrar.  It is to be noticed that, in the course of determining the compensation issue, if a Judicial Registrar or the court should find it necessary to do so, it would be necessary to pass judicially upon the content of the contract as to commissions, and to assay a quantification of any rights which the applicant might have to such commissions, in order that one could arrive at compensation or damages as the case may be.

The claim brought in the associated jurisdiction for unpaid commissions could not itself be delegated to a Judicial Registrar because that claim exceeds $10,000. There is also a claim under the Annual Holidays Act 1944 (NSW) which seems to exceed $10,000 and which therefore could not be heard by a Judicial Registrar. There is, finally, a claim for defamation founded on a letter apparently sent on behalf of the respondent to one or more of its clients, advising the addressees that the applicant had been dismissed for impropriety and that inquiries should be directed to somebody else within the respondent's establishment.

There is as yet no application that the court refrain in its discretion from dealing with a defamation claim and it is in general accepted that the other matters appear sufficiently to arise out of the same substratum of fact to endow the court with jurisdiction to hear them.  In answer to all of the claims but, in particular, to the claim for unpaid commissions, as to which, subject to accrual, the applicant appears on the face of it to have substantial prospects of success, the respondent has cross-claimed for substantial damages.  This claim is based, in a word, upon an allegation that the applicant misused his contractual position with the applicant both before he ceased to perform work for it and afterwards to steal some of the respondent's clients, or otherwise to impair its business relations with its clients.

An application has been made for the separate trial of so much of the issues as concerns the applicant's claims in respect of unlawful termination of employment whether under the Industrial Relations Act 1988 (Cth) or because of the respondent's breach of common law duties. In substance, what the respondent wants to do is to test early the propositions that (a) the applicant was not an employee and (b) he was very properly summarily dismissed for highly improper conduct, if he was such an employee.

If the respondent succeeds as to those matters, it is said that it is likely that the rest of the claims will be susceptible of fairly prompt settlement: among other things, the credit of the applicant would stand a substantial chance of being terminally impaired.  It is also said that important issues as to the claim for unpaid commissions would necessarily be determined, as would at least one important issue in relation to the defamation claim.

The applicant counters that, because it is the melancholy experience of the courts that well-meant orders for the separate trials of issues frequently achieve nothing but duplication of effort and costs, such orders in modern times are rare or at least unusual, and that substantial factual issues would still divide the parties, whatever the outcome of the separate trial sought.

Although the advantage of a preliminary investigation of central issues before a judicial registrar, if that is all that such proceedings might achieve, is not seriously denied, it is pointed out that a judicial registrar cannot hear all of the claims and that the nature of the issues, the stances and apparently the sufficient amplitude of the pockets of both parties suggest that there is a less than usual likelihood that a trial of the separate issues before a judicial registrar would conclude those issues.  Thus the unwelcome delay, for the applicant at least as much as for the respondent, of having to wait for a trial before a judge alone, is best endured rather than sought, probably in the end fruitlessly, to be avoided.

The matter, I repeat, is not an easy one.  There is a good deal, as I hope that short summary of the submissions would indicate, to be said on both sides.  In the end it is a matter of impression, in the light of caution, extreme caution even, to be employed in exercising a discretion to order a separate trial of issues.  However, I do think that the prospects of the ultimate shortening of all the proceedings are sufficiently likely to be advanced by ordering a separate trial of the unlawful termination issues that I should go ahead and order that separate trial.

Therefore I will order that there be a separate trial of the claims made in paragraphs 6, 7, 8 and 9 of the Amended Statement of Claim filed on 11 October 1995.  I might add that a further amended statement of claim is proposed, in effect to remove what was added into the original statement of claim by the amended statement of claim.  The parties may approach the list clerk today to arrange for the matter to be listed for directions before a judicial registrar.

I will direct that the trial of the other issues is to await the trial of the issues directed to be heard by a judicial registrar.

I certify that this and the preceding 5 pages are a true copy of the Ex Tempore Reasons for Judgment of His Honour Justice Madgwick.

Associate:   

Dated:        

APPEARANCES

Counsel for the Applicant:         P Kite with J Pentelow

Solicitor for the Applicant:         The Argyle Partnership

Counsel for the Respondent:      S Rothman SC

Solicitor for the Respondent:      Dunhill Madden Butler

Date of hearing:  18 April 1996