Susan Wolper v Australian Jewish Press Pty Limited [1995] IRCA 675

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 4605 of 1995 B E T W E E N: Susan WOLPER Applicant A N D AUSTRALIAN JEWISH PRESS PTY LIMITED Respondent REASONS FOR DECISION 21 December 1995 PARKINSON JR This is my decision in relation to an application made by the applicant by motion on notice dated 17 November 1995. That application sought leave to amend the application made pursuant to s170EA of the Industrial Relations Act to include a claim in the accrued jurisdiction of the court. Various consequential and interlocutory orders were also sought. This application was opposed by the respondent. The matter was initially listed for hearing before me on 21 November 1995. After hearing the parties, leave was granted to the respondent to file affidavit material, with an opportunity being accorded the applicant to be heard in relation to that material. The parties, at the applicant's request, were given an opportunity to further address me in relation to the matter on 12 December 1995. The application in the notice of motion also sought that the matter be placed in the Judges' Directions List. The applicant's counsel informed the court that the latter application was made because it because it was submitted that the accrued claim was outside of the jurisdiction of a Judicial Registrar as a result of the operation of s 376 and order 74 of the rules of court. I heard brief submissions from counsel in relation to this point at the hearing on 12 December 1995 and I further consider this aspect later herein. The application pursuant to s170EA of the Industrial Relations Act 1988 was filed on 1 September 1995. The application was referred to the Industrial Relations Commission for conciliation and pursuant to s170EC of the Act and a certificate was issued by Deputy President Drake on 10 October 1995. The matter was listed for directions before me on 24 October 1995, at which time, a claim in the accrued jurisdiction having been foreshadowed by counsel for the applicant, the matter was by consent adjourned to further directions on 21 November 1995. The application for leave to amend the proceedings was opposed by the respondent. The respondent submitted that it was not a matter arising from a similar substratum of facts, and that on that basis the court should not proceed to hear and determine the accrued claim. The respondent contends that the employment arrangements between the parties were of a fixed term nature. The applicant contends that they were ongoing, with a requirement for reasonable notice. The claim in the accrued jurisdiction alleges the dismissal was wrongful because it was without reasonable notice, and seeks damages for breach of the contract of employment. A further aspect of the claim relates to commissions alleged by the applicant to be payable pursuant to the employment agreement, which she says remain unpaid. There is also a claim in relation to a car allowance. The amount of the accrued claim is in excess of $150,000.00. I propose to grant leave to the applicant to amend the claim. Having regard to the progression of this matter to date and, in particular, the point in time in the proceedings at which the respondent had notice of the accrued claim, I am not satisfied that there is any prejudice to the respondent by way of delay which would suggest that leave to amend should be refused. I am satisfied that the applicant has an arguable case both in relation to the accrued claim and the issue as to whether the accrued claim arises from a similar substratum of facts. In the circumstances of this claim, having regard to the contents of the affidavit material, it is apparent that the determination by this court of matters arising in the progression of the claim made pursuant to s170EA of the Act necessarily involves a consideration of the agreement made between the parties as to the terms and conditions of employment. In those circumstances, it would be convenient and efficient for this court to hear and determine the proceedings which are sought to be brought by the applicant in the accrued jurisdiction of the court. In the course of progressing such a claim the applicant, through her solicitors, has taken all steps expeditiously, and it is not the case here that the progression of the s170EA proceedings would be hampered or delayed as a consequence of the bringing of the accrued claim. Whilst there are issues raised by the respondent going to the jurisdiction of the court in respect of the s170EA application, I am satisfied that the applicant has an arguable case, with the outcome of the s170EA proceedings dependant upon findings as to facts which are presently in dispute between the parties. I am further satisfied that this is not a case of the type considered by Wilcox CJ in Ardino v Count Financial Group Pty Ltd (1994) 126 ALR 49 where the claim in the accrued jurisdiction was brought colourably in the sense that it was brought with a patently unarguable s170EA claim, purely for the purposes of creating jurisdiction. I am satisfied that the claim raised in the accrued jurisdiction of the court is one which is conveniently brought in this court and does arise out of a similar substratum of facts to those of the principal claim made pursuant to s170EA of the Act. Leave is granted to the applicant to amend the claim to include a claim in the terms set out in the notice of motion filed by the applicant and dated 17 November 1995, save for the application that the matter be adjourned to the Judges' Directions List in February 1996. I have indicated to the parties that I propose to consider the issue of whether the matter is outside the jurisdiction of a judicial registrar to hear and determine, and whether the amended application is a matter appropriate to refer to a judge. I propose to adjourn the matter, subject to various procedural directions in relation to the accrued claim, to directions before me on 13 February 1996 at Melbourne. I further give the following directions in relation to the progression of the case: 1. That the applicant have leave to amend the application filed 1 September 1995 to include a claim in the accrued jurisdiction of the court, such claim being contained in the statement of claim exhibited in the affidavit of Stephen Newman sworn 17 November 1995. 2. That the applicant file and serve the amended claim on or before 30 December 1995. 3. That the respondent file and serve its defence to the amended application on or before 15 January 1996. 4. Any request for further and better particulars of pleadings be made by either party on or before 21 January 1996. 5. On or before 30 January 1996 each party make, file and serve their affidavit of documents. 6. The application be adjourned to directions before Judicial Registrar Parkinson on Tuesday 13 February 1996. I certify that this and the preceding four (4) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate: Dated: 21 December 1995 APPEARANCES Solicitors for the applicant: Jerrard & Stuk Counsel appearing for the applicant: Mr B Lacy Solicitors for the respondent: Holding Redlich Solicitor appearing for the respondent: Mr L Johns Dated of hearing: 21 November & 12 December 1995