Voula Savvidis v Privilege Clothing Pty Ltd Maria Beteramia v Privilege Clothing Pty Ltd

[1994] IRCA 119

IN THE INDUSTRIAL        RELATIONS COURT
OF AUSTRALIA  VI 357 of 1994
VICTORIA DISTRICT REGISTRY

B E T W E E N:

VOULA SAVVIDIS
Applicant

A N D

PRIVILEGE CLOTHING PTY. LTD.
(t/as PROMISES CLOTHING)
Respondent

A N D

VI 358 of 1994

B E T W E E N:

MARIA BETERAMIA
Applicant

A N D

PRIVILEGE CLOTHING PTY. LTD.
(t/as PROMISES CLOTHING)
Respondent

Reasons for Judgment
(Delivered ex Tempore - Revised from draft transcript)

16 November 1994  PARKINSON JR

This is my ex tempore decision in the matter of an application that the Court as presently constituted disqualify itself from further hearing or dealing with the matters of Savvidis and Privilege Clothing Company and Beteramia and Privilege Clothing Company. They are matters VI 357 of 1994 and VI 358 of 1994. The following decision is in relation to the application for disqualification.

These proceedings have been relisted at the instigation of the Court. The evidence in the trial of the matter was heard from 11 to 13 October, 1994. Written submissions were to be filed by 27 October, 1994.  Those submissions were filed. 

This matter was listed for mention as a result of it coming to my attention that there was contained in exhibit K7 in the proceedings a document which did not apparently conform to the class of documents which had been described by the applicants’ counsel as constituting that exhibit.  The parties were notified by letter of the existence of the said document, a copy of which was provided to each party.

The applicant’s solicitor, Ms. Andrades, informed the Court that counsel for the applicant had no recollection of the document, nor any explanation for its inclusion in the exhibit K7. Counsel for the respondent had no appreciation or knowledge of the document having been contained in exhibit K7. The applicant submits that the document is of no relevance in the proceedings and did not form part of the exhibit K7 in any event. The respondent has expressed serious concerns as to the document’s inclusion in the exhibit, and an application was made by counsel for the respondent that I disqualify myself from further dealing with this matter.

This application was made on the grounds that the respondent had a reasonable apprehension of bias in the Court as presently constituted, and subsequently it was said that the process of the Court had been tainted.
This submission was founded upon a concern that the contents of the document could only operate to prejudice the respondent, and that the reading of the document in circumstances where it had not been the subject of argument on tender would give reason for that reasonable apprehension of bias or that said tainting of the process.

It was submitted that the document had been put before the Court in an improper manner. I am satisfied that the document was inadvertently put before the Court.

I am of the view that the document is irrelevant to the proceedings. This fact is not contested by the applicant. Had the document been tendered in the proceedings, it would have then been the subject of scrutiny by me for the purpose of determining its admissibility in the proceedings.

I accept the submission of the applicant that was has occurred here is a transposition of the timing of the argument as to the admissibility of the document. Whilst it might be said that the document has been in the possession of the Court for a longer period of time than it may have been had it been dealt with in the proceedings, I am not satisfied that this of itself is sufficient basis to found a reasonable apprehension of bias in the mind of the respondent.

I therefore decline to disqualify myself from any further hearing or determination of these proceedings.

I certify that this and the preceding three (3) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson as recorded in the
draft transcript and revised by the Judicial Registrar
on 30 November 1994.

Associate:

Dated:  16 November 1994

Solicitors for the applicants:  Maurice Blackburn & Co.
Solicitor appearing for the applicants:                Ms. C. Andrades

Solicitors for the respondent:  Galbally & O’Bryan
Counsel appearing for the respondent:               Mr. P. Burchardt

Date of hearing:  16 November 1994
Date of judgment:  16 November 1994