Terence John Bell and Pepsico Australia

[1995] IRCA 437

Industrial Relations Court
of Australia
Northern Territory District Registry  DI 94/182

Between:                 Terence John BELL
  Applicant

And:  Pepsico Australia
  Respondent

Place:  Darwin
Date:  11 August 1995
Before:  Tomlinson JR

Revised Reasons for decision delivered Ex-Tempore

In the matter of Terence John Bell and Pepsico Australia, being matter DI 182 of 1994.  This is an application brought by way of notice of motion by the applicant seeking the following.  First, for an order that the time for filing and serving of this notice of motion may be breached.  Secondly, for a declaration that the applicant is entitled to proceed to enforce the orders of this court made by consent on 31 July 1995.  Thirdly, alternatively or additionally to a declaration that the respondent has contempt in connection with proceedings in the court.  Fourthly, for an order of costs of and incidental to this notice of motion and also costs occasioned by the respondents failure to comply with the consent orders.

For the purpose of these proceedings leave is granted for short service of notice of motion and accompanying affidavit.  The basis of this application is that consent orders granted by Judicial Registrar Staindl on 31 July 1995 have not been complied with.  Those consent orders were: first, that the respondent must pay to the applicant the sum of $20,000.00 by 5 p.m. on Friday, 4 August 1995; secondly, that the respondent re-instate the applicant in the position of manager by 5 p.m. on Friday, 4 August 1995.  Mr Kilvington, on behalf of the applicant argued that section 376 gives me jurisdiction on the basis that the application before the court conferred those powers on a Judicial Registrar in relation to proceedings before the court and that this matter falls with that category.

Secondly, it was argued that section 417 of the Act grants this court powers to make the declaration sought.  The application was resisted by Mr Silvester on behalf of the respondent who argued a Judicial Registrar does not have power to give declaratory relief nor does a Judicial Registrar have power to entertain proceedings for contempt.  Mr Silvester found part of the affidavit of the applicant’s solicitor objectionable.  Mr Silvester sought leave to cross-examine the applicant’s solicitor as to the affidavit and it was indicated to the court professional issues of conduct would become apparent.

I have considered all the information before the court and put simply the claim was settled in principle and the matter is not resolved as misunderstandings have become compounded.  In order to resolve the matter I do not propose to take evidence as to those misunderstandings nor do I wish for the costs in this matter to be further exacerbated.  As indicated earlier I propose to vary the consent orders so the matter may be settled.  I have considered in detail over the lunch break the language used by the legal representatives in drawing various documents submitted.  To my mind the term, “consent orders”, indicates the parties were consensus ad idem, at a particular point.

Subsequent events show otherwise.

Accordingly, in the variation orders I now hand down the issues dealt with are bland.  I agree with the submission of Mr Silvester, I do have the power to vary the consent orders.  Accordingly, I make the following orders:

1. the respondent is to pay to the applicant the sum of $20,000.00 by 5 p.m. Friday 18 August 1995

2. that on Friday, 18 August 1995 the respondent is to provide a letter dated 4 August 1995 to the applicant on letterhead which states: “This letter certifies Terence John Bell was reinstated to his position as manager on 4 August 1995.”

3. I further order the applicant is to provide to the respondent on 18 August 1995 a letter dated 4 August 1995 under his own signature stating that he hereby resigns his position as manager on 4 August 1995.

4. I further order the applicant and the respondent to execute the following deed on Friday 18 August 1995.  There are two recitals.  Whereas (a) Terence John Bell (Bell) was employed by Pizza Hut (Pizza Hut) as manager until 4 August 1995; (b) certain issue arose out of a dispute between Bell and Pizza Hut concerning employment.  This deed witnesses: (1) Pizza Hut is to pay Bell the sum of $20,000 by 5 p.m. on Friday 18 August 1995; (2) Pizza Hut shall provide a letter on 18 August 1995 on its letterhead to Bell which states, “This letter certifies that Terence John Bell was reinstated to his position as manager on 4 August 1995” that letter to be dated 4 August 1995; (3) Bell shall provide a letter to Pizza Hut on 18 August 1995 under his own signature that states that he hereby resigns his position as manager for Pizza Hut on 4 August 1995, that letter is to be dated 4 August 1995; (4) Bell hereby agrees to indemnify Pizza Hut against all taxation liabilities in respect of the sum of $20,000.00 paid by Pizza Hut to bell on Friday, 18 August 1995.

I certify that this and the preceding 2 pages are a true and accurate record of the Revised Reasons for Decision delivered by Judicial Registrar Tomlinson in these proceedings.

Associate:
Date:  4 September 1995
Appearances

Counsel for the applicant:      Mr Kilvington
Instructed by:  Mr Priestley of Waters James McCormack

Counsel for the Respondent:  Mr Silvester
Instructed by:  Mr Senior of Ward Keller