Steinke v Rubanmeadows Pty Ltd

[1996] IRCA 106

DECISION NO:   106/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

No VI 95/3520

B E T W E E N :

STEINKE
Applicant

AND

RUBANMEADOWS PTY LTD
Respondent

JUDGE:     North J
PLACE:     Melbourne
DATE:       18 March 1996

EX TEMPORE REASONS FOR JUDGMENT

This is an application made by the respondent to vacate the hearing date presently fixed for 2 April 1996. The ground for the application for adjournment is that William Eiro, a director of the respondent company, will not be available to give evidence at the trial of the matter on 2 or 3 April 1996. Mr Eiro is the main and possibly only witness for the respondent.

The circumstances in which his unavailability arose are as follows. On 7 December 1995, he was informed by his solicitor that this matter was fixed for hearing on 2 and 3 April 1996. On 17 February he received notice of meetings overseas with some suppliers of the respondent which were to occur between 15 March and 26 April 1996. Promptly on being notified of those meetings, he sought the consent of the applicant to an adjournment of these proceedings. He sought consent first on 20 February and again on 21 February. On 27 February the applicant refused to agree to the adjourned hearing date. Immediately afterwards, namely, on 28 February, the notice of motion which brings the matter before the Court today was filed. To this point, it must be said that the respondent acted quickly and little criticism can be directed towards it.

The notice of motion was returnable on 18 March 1996. The first meeting overseas was to occur on 15 March 1996 and I infer from the affidavit of Mr Eiro filed in support of the application that he left Australia some short time before 15 March. Consequently, at the time when he left Australia, there was extant a notice of motion listed a few days later to determine whether the trial should proceed or not.

Mr Forsyth, who appeared on behalf of the applicant, opposed the adjournment on the basis that the primary claim of the applicant is for reinstatement or re-employment with the respondent and the delay in hearing would cause prejudice and hardship to the applicant who has been, since June 1996, without employment.

The way the case presently appears to me is that the applicant for the adjournment took a risk when Mr Eiro left Australia that the adjournment would not be granted. That risk was taken in circumstances where it should have been plain that a delay would prejudice the applicant in a claim for reinstatement by potentially delaying the reinstatement if such relief were granted.

In these circumstances, I am not persuaded at this time that the trial date should be vacated. I propose to order that the application for adjournment be fixed for further hearing on the first day of the trial if the respondent desires to progress it on that day. On that occasion, the respondent might be in a position to provide a more persuasive case for an adjournment by describing the detail of the matters contained in paragraphs 3 to 5 of Mr Eiro’s affidavit sworn on 28 February 1996, that is to say, the dates and times of the meetings which had to be attended, the business that was to be transacted, the urgency of them, in what way it was that the meetings were of importance to the respondent. I give these matters by way of example and without intending them to amount to an exhaustive list. It would also assist in any further application for an adjournment if the evidence-in-chief of Mr Eiro were reduced to affidavit form so that the trial might, for instance, proceed in part on the days allocated and conclude at some date shortly after.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment of his Honour Justice North.

Associate:
Dated:        

Solicitors for the applicant:     Maurice Blackburn & Co
Counsel for the applicant:      A. Forsyth

Solicitors for the respondent:  McMahon Fearnley
Counsel for the respondent:    C. Smale

Date of hearing:  18 March 1996
Date of judgment:                   18 March 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

No VI 95/3520

B E T W E E N :

STEINKE
Applicant

AND

RUBANMEADOWS PTY LTD
Respondent

ORDER

JUDGE:     North J
PLACE:     Melbourne
DATE:       18 March 1996

THE COURT ORDERS THAT:

1. The motion, notice of which was filed by the respondent on 28 February 1996, be adjourned until 10.15 am on 2 April 1996.

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

C A T C H W O R D S

INDUSTRIAL LAW - APPLICATION FOR ADJOURNMENT where principal witness unavailable for hearing and overseas before hearing of motion.

STEINKE -v- RUBANMEADOWS PTY LTD

No. VI 95/3520

Before:                North J
Place:                   Melbourne
Date:                   18 March 1996