Tom Moeke and Cooks Body Works Limited [1994] IRCA 152

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI 1352 of 1994

BETWEEN:

TOM MOEKE Applicant

AND

COOKS BODY WORKS PTY LIMITED Respondent

BEFORE: Judicial RegistrarMillane

PLACE: Melbourne

DATE: 9 December 1994

REASONS FOR JUDGMENT (EX TEMPORE) - REVISED FROM TRANSCRIPT

I am satisfied on being informed by the Applicant that, on Monday 5 December 1994, he instructed his solicitor, Mr White, from Behan and Speed, Solicitors, to file a notice of discontinuance in these proceedings. This was because the Applicant did not have funds to proceed with the hearing. I am further satisfied that such notice of discontinuance was not filed or served until late on the morning of the hearing on Thursday 8 December 1994. On that date the solicitors acting for the Applicant did not attend court, they did not seek the consent of the Respondent to the filing and service of the notice of discontinuance in accordance with Order 22 of the Industrial Relation Court Rules, nor did they seek leave of this court to discontinue in the circumstances.

The notice received by the court just prior to the commencement of the hearing is not a valid notice and could not of itself discontinue the proceeding. I have had an opportunity to read an affidavit filed by the Respondent and sworn by Geoffrey Lloyd Rees on 8 December 1994, indicating that the solicitor for the Applicant Mr White was informed on 8 December 1994 that an application would be made on 9 December 1994 to this court for the Respondent's costs. These costs were incurred because of the failure to file and serve a valid notice of discontinuance and attend court on the hearing date. This court's listing officer also spoke by telephone to Mr White, the Applicant's solicitor, on 8 December 1994 and informed him that the Respondent would be making an application for its costs on the following day and further informed him that the notice of discontinuance he attempted to file was not a proper notice of discontinuance and the proceeding was still on foot.