C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - PRACTICE AND PROCEDURE - vacation of hearing date - discovery INDUSTRIAL RELATIONS ACT 1988, S 170 EA MARGARET ANNE PERCIVAL -v- STUDIOLINE HOLDINGS PTY LTD - WI 95/1467 BEFORE: MILLANE JR PLACE: PERTH DATE: 22 AUGUST 1995 IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1467 BETWEEN: MARGARET ANNE PERCIVAL - Applicant AND: STUDIO LINE HOLDINGS PTY LTD - Respondent BEFORE: MILLANE JR PLACE: PERTH DATE: 22 AUGUST 1995 REASONS FOR DECISION This proceeding was fixed for hearing on 22 August 1995, such fixture being made some weeks earlier. By Notice of Motion filed on 21 August 1995 together with a supporting affidavit of John Woods (Woods) sworn on the same date, the Respondent sought the following orders: 1. The hearing scheduled to commence on Tuesday 22 August 1995 be adjourned. 2. The time before which this Notice of Motion is to be served, has been abridged by the Court to 21 August 1995. The Notice of Motion proceeded before me on 22 August 1995 and because of other matters deposed to by Woods in his affidavit, the Court was also asked to make orders with respect to discovery of documents by the Applicant. After hearing lengthy argument from both parties, I handed down the following orders with an indication that my reasons for making such orders would be published shortly thereafter: 1. That the time for filing and serving the Respondent's Notice of Motion be abridged to 21 August 1995. 2. That the hearing date for proceeding No. WI 1467 of 1995 be vacated and the proceeding be refixed for hearing on a date to be fixed. 3. That the Applicant file and serve a list of documents on or before 29 August 1995 and such list is to include and identify - (a) details of the Applicant's bank statements from 14 April 1995 to the date of making the list of documents; (b) details of any statement of allowance/benefit received by the Applicant from the Department of Social Security since 14 April 1995; (c) documents pertaining to (i) the Applicant's control of the company known as Yaykel Pty Ltd; (ii) work performed by the Applicant for Yaykel Pty Ltd since 14 April 1995; (iii) the contract referred to in paragraph 25 of the Applicant's Summary of Facts filed 9 August 1995; (iv) any income earned by the company Yaykel Pty Ltd from 14 April 1995 as a result of work performed by the Applicant to the date of making the list of documents; (v) any distribution, dividends, payments or payments of income by Yaykel Pty Ltd to the Applicant since 14 April 1995 to the date of making the list of documents. (d) Documents relating to the sale of the business referred to in paragraph 21 of the Applicant's Summary of Facts filed 9 August 1995 4. That the documents referred to in the Applicant's list of documents be made available for inspection at the offices of the Applicant's solicitor by appointment during office hours between 30 August 1995 and 5 September 1995 inclusive. 5. That there be liberty to both parties to apply to the Court on reasonable notice. The Adjournment The Respondent's primary application by way of Notice of Motion was for an adjournment of the hearing date; the need for such adjournment allegedly arising out of circumstances beyond the Respondent's control. The Respondent's business involves it in producing advertisements and, because of the coincidence of a number of events to do with the weather, the timing for the filming of a particular commercial and the availability of both Woods and a film crew, the Respondent alleged that it had been thwarted in its plans to film on 18 August 1995. The last date available for filming was, according to the Respondent, 22 August 1995 and, to cut a rather lengthy story short and hopefully without doing the deponent any injustice, Woods and his film crew could only proceed on 22 August 1995 or risk the loss of a substantial contract. It should be kept in mind that the Respondent company has two working directors, Woods and Michelle Cohen (Cohen) both of whom are, according to the Respondent, relevant witnesses in this proceeding where the Applicant alleges that her contract of employment with the Respondent, commencing on 6 February 1995 was unlawfully terminated by Woods on or about 13 April 1995. Of itself the commercial vicissitudes of the Respondent company would not suffice to delay hearing date fixed without objection some weeks earlier. The Applicant quite properly pointed out to the Court that she was ready to proceed and for the purposes of the hearing her family company had foregone work at least for the hearing date on 22 August 1995. I granted the adjournment sought with considerable reluctance and certainly not because of the threat to the Respondent's commercial interest. The reason for granting the adjournment was that Cohen, the Respondent's second witness is, according to a medical certificate obtained from a Dr Beinart from the Newcastle Medical Centre on 21 August 1995, presently not fit to give evidence because of medical treatment being received for a condition identified as thyrotoxicosis. By paragraphs 24-28 inclusive of Woods' affidavit, the Court was informed of Cohen's role in the proceeding and further it was said that "Michelle suffers from a thyroid condition, and is experiencing ill health at present. Her Doctor has advised that her condition can deteriorate due to stress. The having to give evidence is a cause of her stress, and medically she has been advised that she should not give evidence in this matter." The Applicant, through her solicitor Mr Farrell, sought to challenge the cogency of the statement made in Woods' affidavit and the accompanying medical certificate by calling his client to tell the Court what she, the Applicant, knew of Cohen's medical condition prior to the issuing of the medical certificate. Whilst the Applicant may be able to provide the Court with some anecdotal evidence of the witness's medical condition prior to 21 August 1995, which may or may not contradict some of the statement made by Woods in his affidavit, it was conceded by Mr Farrell that his client was not in a position to provide the Court with expert medical evidence to contradict the diagnosis and finding of the doctor in his medical certificate which, apart from this diagnosis, states "Currently she is not fit (sic) give evidence in Court due to her disease. She is receiving treatment which will take a couple of months to take effect." If I entertain any concern about the alleged unfitness of the witness to give evidence for some months it is because of the paucity of information contained in both the affidavit material and the medical report and the failure to explain why the condition of the witness was not medically assessed prior to 21 August 1995. Nevertheless, I am left with a medical certificate indicating to me that a relevant witness is not presently available and, in particular, not available during the week I am sitting in the Perth Court to hear this matter. The cost to the Court and the parties in adjourning the proceeding part heard to allow the witness's evidence to be given at some unknown time in the future in my view could not be justified in all the circumstances. Discovery Having attempted to serve a Notice for Discovery on 17 August 1995, the Respondent succeeded in filing and serving such a notice on 18 August 1995. The notice seeks discovery of a number of specific documents. This quest for discovery was allegedly generated by the Applicant's Summary of Facts filed 9 August 1995. There was no explanation forthcoming for the delay in seeking discovery, however, in view of the adjournment of the hearing date I proceeded to both hear argument and make orders. In response to the notice received on 18 August 1995, the solicitors for the Applicant forwarded to the Respondent a copy of Annexure "A", which annexure was omitted from the Applicant's Summary of Facts. Otherwise the Applicant objected to the production of the documents referred to in paragraphs (c) to (f) inclusive of the notice. Such objection was made on the grounds of the relevance of discovery sought. Paragraphs 19 to 25 inclusive of the Applicant's Summary of Facts appear to have generated the application for discovery and in particular paragraphs 21 and 25 respectively: "21. As a result of her decision to accept the Respondent's offer of employment, and in reliance on her having stable employment with the Respondent, the Applicant sold her business, and agreed as part of the sale not to recommence in business in competition with the purchaser for two years. 25. The Applicant's family company succeeded in June in obtaining a limited-term contract to provide training for another business. This training is being performed for the company by the Applicant. The training contract ends on 25 October 1995." On behalf of his client, Mr Farrell conceded that the Applicant is a director and shareholder in what is described as a family company named as Yaykel Pty Ltd and that is the company referred to in paragraph 25 of her Summary of Facts filed in this proceeding. There are live issues as to whether the Applicant has worked for the company since termination and further whether she may in some way control or direct the distribution of income earned by the company as a result of its business activity and, furthermore, whether she is in some way engaged in the business of the company even if she does not receive any reward for such activities. Mr Farrell handed to the Court a schedule of remuneration received by the Applicant since termination and such schedule includes a sum of $4,121.35 paid to the Applicant by the family company together with explanatory material attached to that schedule showing what the payments were made for. Because of the abovementioned matters, I formed the view that all documents relevant to the question of the Applicant's control of the company, her role in the company, the distribution of company monies, the work performed by the Applicant on behalf of the company and any income earned by the company by reason of the Applicant's exertion whether it is paid to her or not, are all documents relevant to facts in issue; namely, the Applicant's remuneration, her entitlement to compensation and any arguments concerning mitigation of loss. In addition to seeking discovery of documents referred to above, the Respondent also sought discovery of the Applicant's bank statements from 6 February 1995. There was no significant contest on this point save for the limiting of the provision of details of bank statements from the date of termination to the date of the preparation of a list of documents. Apart from the production of the appropriate certificate from the Department of Social Security certifying the amounts paid to the Applicant since the date of termination, I rejected as irrelevant an application by the Respondent that the Applicant discover "all notices issued to the Applicant and her husband by the Department of Social Security, including receipts for payments made by that Department". In some oblique way this application appears to have been generated by a desire to challenge the credibility of the witness. As this Court, when determining the amount of compensation payable, is not obliged to take into account the amounts received from the Department of Social Security, the direct relevance of the documents sought to any fact in issue is questionable. Notwithstanding this observation, the Applicant has agreed to produce the certificate which may be relevant to the determination of any period over which the Applicant was unemployed; although without more the certificate is not conclusive of this issue. Insofar as the Respondent seeks discovery of documents relating to the contract referred to in paragraph 25 of the Applicant's Summary of Facts, this discovery is relevant to the issues of any compensation payable and mitigation of loss. Accordingly the orders made reflect the matters set out above. THE COURT ORDERS: 1. That the time for filing and serving the Respondent's Notice of Motion be abridged to 21 August 1995. 2. That the hearing date for proceeding No. WI 1467 of 1995 be vacated and the proceeding be refixed for hearing on a date to be fixed. 3. That the Applicant file and serve a list of documents on or before 29 August 1995 and such list is to include and identify - (a) details of the Applicant's bank statements from 14 April 1995 to the date of making the list of do0cuments; (b) details of any statement of allowance/benefit received by the Applicant from the Department of Social Security since 14 April 1995; (c) documents pertaining to (i) the Applicant's control of the company known as Yaykel Pty Ltd; (ii) work performed by the Applicant for Yaykel Pty Ltd since 14 April 1995; (iii) the contract referred to in paragraph 25 of the Applicant's Summary of Facts filed 9 August 1995; (iv) any income earned by the company Yaykel Pty Ltd from 14 April 1995 as a result of work performed by the Applicant to the date of making the list of documents; (v) any distribution, dividends, payments or payments of income by Yaykel Pty Ltd to the Applicant since 14 April 1995 to the date of making the list of documents. (d) Documents relating to the sale of the business referred to in paragraph 21 of the Applicant's Summary of Facts filed 9 August 1995 4. That the documents referred to in the Applicant's list of documents be made available for inspection at the offices of the Applicant's solicitor by appointment during office hours between 30 August 1995 and 5 September 1995 inclusive. 5. That there be liberty to both parties to apply to the Court on reasonable notice. I certify that this and the preceding nine pages are a true copy of the Reasons for Judgment of Judicial Registrar Millane. Associate Date: Counsel for the applicant: Mr R Farrell Solicitor for the applicant: Richard Farrell Counsel for the respondent: Mr I Mossenson Solicitors for the respondent: Mossensons Hearing date: 22 August 1995 Judgment date: 22 August 1995