Stanmore v Australian Taxation Office

[1996] IRCA 347

DECISION NO:  347/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY   NI 1209 of 1996

PHILIP STANMORE
Applicant

AUSTRALIAN TAXATION OFFICE
Respondent

Coram:         Judicial Registrar Linkenbagh
Place:  Sydney
Date:             2 July 1996

REASONS FOR JUDGMENT

Delivered ex tempore and revised from the transcript

These proceedings come before me this morning on a Notice of Motion filed by the applicant on 14 June 1996 in which he seeks Orders that the Order of the Registrar on 9 April 1996 dismissing the application be vacated and that the matter be listed for hearing. In support of the Notice of Motion the applicant has filed an affidavit which does not bear the date of swearing but was filed in the Registry on 14 June 1996.   The applicant gave oral evidence to supplement the material contained in his affidavit.

The relevant Rule is Order 35 Rule 7 which provides in subparagraph (1) that the Court may vary or set aside a judgment or Order before it has been entered.  The relevant Rule is subparagraph (1) of Order 35 Rule 7 as the Order in this case has not been entered.  The principles upon which a Court sets aside an Order are well established and require the Court, where the Order was made in the absence of a party, primarily to look to the reasons for which the party was not present on the day that the Order was made and also require the Court in the interests of justice and balancing the interests of the parties, to consider whether the case for the party moving to set aside the Order has any prospects of success on a prima facie basis.

In this case, the applicant swore in his affidavit that he moved from his address at 34 Alleyne Street, Chatswood, to 66 Garden Grove Parade, Adamstown, and I quote, “on approximately March 1996”.  In his oral evidence today he gave his residential address as 4/71 Probert Street, Newtown and he informed me that he moved to that address in March of 1996.  The residential address of the applicant shown on the application filed in the Australian Industrial Relations Commission on 29 January 1996 is 34 Alleyne Street, Chatswood.  The Court file reveals no change in that residential address up to the filing on 14 June 1996 of the Notice of Motion and affidavit to which I have already referred.  The Form 132 which is the originating process in the Commission was signed by Ivan Rogers as Divisional Organiser of the Community and Public Sector Union and was filed by him on behalf of the applicant.

The application annexes a document headed “Termination of Employment” generated by a Delegate of the Commissioner of Taxation which indicates that the employment of the applicant was terminated pursuant to the provisions of subsection 47(4) of the Public Service Act.  It further annexes a letter dated 15 January 1996 addressed to the applicant, setting out the reasons for the termination of the applicant's probationary employment with the Australian Taxation Office.

The applicant was represented by solicitors, Carroll and O'Dea, at the Conciliation Conference on 26 February 1996.  The Commission referred the proceedings to the Court under a Certificate dated 29 February 1996 and on 7 March 1996 the Court Registry wrote to the CPSU informing the Union of a Directions Hearing on 26 March 1996.

In response to that the CPSU informed the Court in writing on 12 March 1996 that it no longer represented Mr Stanmore.  There was no appearance before Judicial Registrar Walker on 26 March 1996 for the applicant and the matter was stood over for further directions on 9 April, with a direction that the Court notify the applicant of the adjourned date.  The Court forwarded a further letter to Mr Rogers at the CPSU on 27 March 1996 informing the Union of the adjourned date.

The Court also wrote to Mr Stanmore at 34 Alleyne Street, Chatswood, on 1 April 1996 informing him of the directions hearing for 9 April.  There was no appearance for the applicant before District Registrar Hagan on 9 April 1996.

The applicant informed me today that this mail had not been on-forwarded to him from the Chatswood address.  The applicant has taken no steps, notwithstanding the involvement of the Union and the firm of Carroll and O'Dea in the proceedings, to ensure that the Court record adequately reflected the identity of his representative or solicitor or even his own residential address.  The responsibility for ensuring that the Court is able to contact a party lies with that party and this applicant has not discharged his responsibility in that regard.  I am not therefore satisfied that there is an adequate explanation for the failure of the applicant to appear on either 26 March or 9 April.

Turning to the prima facie merits of the application, it appears from the evidence and submissions I have heard this morning that the applicant, prior to July of 1995, was a continuing employee within the meaning of that term under the Public Service Act.  His employment at that status was to come to an end with the closing of the establishment of the Department of Defence at which he worked.  The applicant elected to seek permanent employment to the Public Service in applying for his position as an Administrative Service Officer, Class 2, with the Australian Taxation Office.  That was an election made by the applicant, and under the provisions of the Public Service Act, that appointment is subject to a period of probation.  The applicant was found by his employer to be unsuitable within the first three months of the employment, and it seems the evidence which would be led if there were to be a hearing of this matter, would be to the effect that the employer had made the decision to terminate the probationary employment after three months, but allowed the applicants some further time because of the need to investigate matters relating to the applicant's health which were raised by the applicant in response to his being notified of the initial decision to terminate the probationary appointment.

In all of those circumstances it seems to me that the applicant's application before this Court would have little prospect of success if it were allowed to run, and the applicant therefore has failed to satisfy me that he had an adequate reason for his non-attendance at the directions hearings in these matters, and also has failed to satisfy me that he has a reasonable prospect of success prima facie on merits.

For all of those reasons, I decline to set aside the Order of District Registrar Hagan made on 9 April 1996 dismissing this application.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of Judicial Registrar Linkenbagh

Associate:     Renee Cauchi

Date:              1 August 1996

The applicant appeared in person

Solicitor for the Respondent:        Mr. M. Allatt
  Australian Government Solicitor

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION - NOTICE OF MOTION TO SET ASIDE ORDER OF REGISTRAR DISMISSING APPLICATION - EXPLANATION FOR NON-APPEARANCE REQUIRED - PRIMA FACIE CASE REQUIRED

Industrial Relations Act 1988, S 170EA
Industrial Relations Court Rules Order 35 Rule 7(1)
Public Service Act, 1922 Section 47(4)

PHILIP STANMORE V AUSTRALIAN TAXATION OFFICE

No. NI   1209    of 1996

CORAM:     LINKENBAGH JR
PLACE:       SYDNEY
DATE:          2 JULY 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY   NI 1209 of 1996

PHILIP STANMORE
Applicant

AUSTRALIAN TAXATION OFFICE
Respondent

Coram:         Judicial Registrar Linkenbagh
Place:  Sydney
Date:             2 July 1996

MINUTES OF ORDERS

THE COURT ORDERS:

That the Notice of Motion is dismissed and the Order of the Registrar of 9 April dismissing the Application is to stand.

Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules