Stearnes and Holden's Engine Company

[1995] IRCA 83

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1720 of 1994

BETWEEN:

NIGEL PAUL STEARNES
Applicant

AND

HOLDEN’S ENGINE COMPANY
Respondent

REASONS FOR JUDGMENT (EX TEMPORE)
(Revised from Draft Transcript)

20 February 1995  Judicial Registrar Fleming

The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real issue to be tried.  This court has granted leave to the respondent to proceed with an application today pursuant to Order 20 as disclosing no reasonable cause of action and/or alternatively that the application is of a frivolous nature and an abuse of process.  Leave to proceed with the application was granted pursuant to Order 19, Rule 2(a) and (d) and on the basis that such an application was foreshadowed on 17 February 1995, the last sitting day, in the presence of the applicant, and that the applicant is accordingly not taken by surprise by the application.

This matter was originally fixed for hearing on 8 February 1995.  However, due to over listing the matter was not reached until 9 February 1995.  The matter was originally estimated to take two days.  On 9 February 1995 the applicant claimed he could not proceed because he had a medical appointment.  When questioned as to the time of the appointment he could not say.  He was invited by the court to make enquiries, and on making those enquiries the court granted him leave to attend the appointment at 1:00pm at the Alfred Hospital.

The matter was commenced that morning and then adjourned at 12:00 noon in order to accommodate the applicant and to give him time to make his appointment, which he had confirmed with the hospital would take no more than one hour.  He was told to reappear at court at 2:30pm.  The applicant failed to return to court at 2:30pm but telephoned and said he would not be finished in time at the hospital.  It appears on his own sworn evidence that he in fact was finished at 2:00pm.  The applicant was then directed to attend the court on Friday, 10 February.  He failed to appear.  The applicant was sent a letter advising that if he failed to contact the court within seven days his application would be dismissed.

One difficulty both the court and the respondent have had is in contacting the applicant given that he has not got a telephone.  The applicant contacted the court during the following week and the matter was fixed for hearing on 17 February.  The applicant, on 17 February initially sought to submit that he was not prepared to proceed because he did not have the Regulations on which he was seeking to rely.  He, however, did not seek to make an application to adjourn and the court suggested he make use of the luncheon adjournment to obtain those regulations, and furthermore that there would be no more delays.

The matter proceeded on 17 February and the applicant did not call any witnesses other than himself.  In cross-examination the applicant was revealed as an unreliable and evasive witness.  He gave sworn evidence that he was not honest, that he was not punctual at work, that he was not a hard worker, that he did not get along with his supervisors and that he was not organised.  His own evidence was that he had at least three Supervisors Employee's Reports (“SER’s) and furthermore that he had many verbal warnings.  His evidence was that he was given an opportunity on the day of his dismissal, that being 30 August 1994, to defend himself against the allegations made and furthermore to have representation from the union, namely Mr John Cleary.  It is noteworthy that Mr Stearnes did not call Mr Cleary as a witness.

The applicant further sought to claim that the main reason for dismissal was problems he had with his superannuation.  He called no evidence to support this.  It is clear on the material exhibited by the applicant, and in particular exhibit C, that being the letter of termination, that the employer had a valid reason in terminating the applicant.  Furthermore, the applicant has not been able to submit anything that could suggest the dismissal was harsh, unjust and unreasonable within the terms of the Act.  It is of great concern to this court that the applicant has admitted openly that he is dishonest.

It is of great concern that when asked why he did not answer one question Mr Wood put to him he said because he was not directed to, and that was after the court directed him to answer it.  A witness usually should not be asked to answer a question honestly or directly.  It is assumed, if he is giving sworn evidence that that would be the case.  It is of further concern to this court that this application is a vexatious application, and a view of this application could be, or one view could be, that it is the applicant's aim to cause the employer as much trouble as possible.  However, on that view I make no comment short of saying that it is a view this court could take.  On that basis I uphold the application of Mr Wood.  I dismiss Mr Stearnes’ application for unfair dismissal and I make no further order.

Order Of The Court

1. This application be dismissed.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of Judicial Registrar Fleming as recorded in the draft transcript and revised by the Judicial Registrar.

Associate:

Dated:  

Applicant representing himself.
Counsel for the Respondent:	Mr Wood
Dates of hearing:	9, 10, 17 & 20 February 1995
Date of Judgment:	20 February 1995.

INDUSTRIAL RELATIONS COURT
OF INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1720 of 1994

BETWEEN:

NIGEL PAUL STEARNES
Applicant

AND

HOLDEN’S ENGINE COMPANY
Respondent

MINUTES OF ORDER

20 February 1995  Judicial Registrar Fleming

THE COURT ORDERS THAT:

1. This application be dismissed.

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