Peter William Presland v Sievwright the White Glove Mover [1995] IRCA 324

CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - application by employee for a remedy - review of judicial registrar's decision - nature of review - application dismissed because of applicant's non-appearance - circumstances of non-appearance not fully known by judicial registrar - decision set aside. Industrial Relations Act 1988 s 170EA, s 347. PETER WILLIAM PRESLAND V. SIEVWRIGHT THE WHITE GLOVE MOVER NO. VI 1996R of 1994 Judge: GRAY J. Place: MELBOURNE Date: 29TH MAY 1995

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. VI 1996R of 1994 ) VICTORIA DISTRICT REGISTRY ) B E T W E N : PETER WILLIAM PRESLAND Applicant - and - SIEVWRIGHT THE WHITE GLOVE MOVER Respondent JUDGE: Gray J. PLACE: Melbourne DATE: 29th May 1995 EX TEMPORE REASONS FOR JUDGMENT This is an application for the review of the exercise by a judicial registrar of powers delegated to judicial registrars under the Industrial Relations Act 1988 ("the Act") and the rules of the Industrial Relations Court of Australia. The proceeding concerns an application under s. 170EA of the Act, in which the applicant claims a remedy in respect of the termination of his employment by the respondent.

In accordance with the provisions of the Act, the matter was referred to the Australian Industrial Relations Commission for conciliation. It was returned to the Court prior to 22nd February 1995, with a certificate that the commission was unable to settle the claim. Apparently, there had been two dates fixed for conciliation sessions and the applicant had not appeared at either of them. There was also a directions hearing fixed for 14th March in this Court, at which the applicant did not appear. He did appear on 21st March 1995 at a directions hearing, at which stage the matter was fixed for trial on 28th April 1995. Because of his presence at the directions hearing on 21st March, the applicant was well aware that the matter had been so fixed. At the time, the applicant was employed by Austwide Removals as a driver. His duties involved driving vehicles, moving furniture and similar items and at times involved driving such vehicles interstate. On 26th April, the applicant was directed by Austwide Removals to travel to Queensland by air and retrieve a vehicle, which was then in Queensland. He accepted that direction, notwithstanding his knowledge that the application was listed for trial on the Friday. On 26th April 1995 Austwide Removals, by its Operations Manager, Mr. Ted Stacey, sent a facsimile to the Court. The message contained in the facsimile was in the following terms: "Please be advised that Mr. Peter Presland will not be able to attend case being heard on Friday 28.4.95 @ 10 a.m. as he will be doing an interstate job for our company on that date." At that stage, no advice was given to the respondent, or the respondent's representative, of the inability of the applicant to attend. On the following afternoon, 27th April, Mr. Knowles, the representative for the respondent, had a conversation with the manager of Austwide Removals, who asked whether the case was due to be heard in the near future. Mr. Knowles informed the manager that it was. The manager then said that he had sent the applicant to Queensland that morning. The applicant's own recollection in evidence was that he had flown to Queensland on the morning of 28th April. At all events, it was clear to Mr. Knowles on the afternoon of the 27th that there was some doubt whether the matter would proceed. Mr. Knowles and the witnesses for the respondent did attend the Court on the morning of 28th April. After hearing from Mr. Knowles, the judicial registrar dismissed the application. An application for costs was made on behalf of the respondent. The judicial registrar adjourned the application for costs to 19th May 1995. In the meantime, by letter dated 28th April 1995, at the direction of the judicial registrar, the Court communicated with Mr. Presland, advising him that the application had been dismissed "as you failed to appear". The letter read in part as follows: "The court dismissed your application on the basis of submissions made by Mr Knowles and taking into account the history of this proceeding and the number of times you have failed to appear at Court. The respondent sought from the Court an order for costs against you. The Court has adjourned the respondent's costs application to 19th May 1995 at 9.30 a.m. Should you fail to appear on this occasion, it is likely that an order for costs will be made against you pursuant to the Industrial Relations Act 1988 which permits the Court to order costs when an application is made vexatiously or without reasonable cause." On 19th May, the application for costs was heard. In the result, the judicial registrar ordered the applicant to pay the respondent's costs, fixed at $1000, and stayed the order for 21 days. It is the judicial registrar's orders, firstly, dismissing the application, and secondly, ordering the applicant to pay costs, of which this review is sought. The review is a new hearing of the matter, on the evidence before the judge reviewing it. It is not in any sense an appeal, which would seek to determine the correctness of the judicial registrar's decision on the evidence before her. I approach it on a footing that it is a new hearing, and that I have to deal with it on the evidence before me. The case obviously has a sad history, involving non-attendances by the applicant. I do not in any sense condone those non-attendances. Nonetheless, it seems to me that it was wrong to dismiss the application on 28th April because of the non-attendance of the applicant, or indeed for any other reason. I am swayed in this by the fact that it is clear that, on the afternoon preceding 28th April, Mr. Knowles did have knowledge that there was at least some doubt as to whether the applicant would attend and some opportunity to deal with the issue of non-attendance. I appreciate that Mr. Knowles was placed in the difficult position of having to turn up with the respondent's witnesses, but it seems to me that dismissal of the application altogether was too harsh a penalty to impose on Mr. Presland. Mr. Presland himself was in something of a dilemma when given a direction by his employer to proceed to Queensland. He has given evidence, which I accept, that he felt that he would be unlikely to retain his job if he were not to obey that direction. I might say that that was evidence that the judicial registrar did not have before her at the time that she made the order of 28th April. Mr. Knowles endeavoured to urge upon me that evidence had been given on the previous occasion, that suggested that the applicant did not have a valid claim for unlawful termination in any event. It seems to me on the basis of what I have heard from the bar table today that there are issues to be resolved relating to the manner of the termination of the employment of the applicant by the respondent. Even if no occasion arises for reinstatement and if no compensation is payable because no loss is suffered, then it is still open to the Court to resolve the issue of the correctness of the termination. It follows that the order dismissing the application must be set aside. The order for costs must also be set aside. While the proceeding remains on foot, no occasion arises to consider making an order for costs against the applicant. In any event, without a determination of the merits of an application, it is rarely possible to find that the application was instituted vexatiously or without reasonable cause, within the meaning of s. 347 of the Act. For those reasons I propose to set aside the orders made by the judicial registrar. It is obviously not appropriate that I should proceed to deal with the merits of the matter today. The parties are not ready. I therefore propose to direct that the matter be heard by a judicial registrar on a future occasion which will have to be fixed. I strongly urge Mr. Presland to make every effort to be present and ready to proceed with the application on whatever date is fixed. The orders I make are as follows: (1) the order of the judicial registrar made on 28th April 1995, dismissing the application, and the order of the judicial registrar made on 19th May 1995, that the applicant pay the respondent $1000 costs, with a stay of 21 days, are set aside; (2) in lieu thereof, the application be tried by a judicial registrar on a date to be fixed. The applicant appeared in person. Representative for the respondent: P. Knowles. Victorian Road Transport Association Inc. Date of Hearing: 29th May 1995 Date of Judgment: 29th May 1995 I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of his Honour Justice Gray Associate: Date: