Morton v Mack Studio Pty Limited [1996] IRCA 597

DECISION NO:597/96 IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. AI 94/0223R-0237R NEW SOUTH WALES DISTRICT REGISTRY) No. AI 94/0223R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: MACK STUDIO PTY LIMITED Respondent No. AI 94/224R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: LULU'S ADULT ENTERTAINMENT PLC Respondent No. AI 94/225R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: BENELAN PTY LIMITED Respondent No. AI 94/226R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: CLUB CHAMPIONS PTY LIMITED Respondent No. AI 94/227R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: UPDATE PUBLISHING PTY LIMITED Respondent No. AI 94/228R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: HOT CHERRY PTY LIMITED Respondent No. AI 94/229R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: ADAM AND EVE VIDEO PTY LTD Respondent No. AI 94/230R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: XCITEMENT EXPRESS PTY LIMITED Respondent No. AI 94/231R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: TRUEFEAT PTY LIMITED Respondent No. AI 94/232R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: MUSTANG RANCH ADULT SHOP PTY LIMITED Respondent No. AI 94/233R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: BUDTINT PTY LIMITED Respondent No. AI 94/234R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: KITLOFT PTY LIMITED Respondent No. AI 94/235R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: MELHERO PTY LIMITED Respondent No. AI 94/236R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: CHAMPION VIDEO OF AUSTRALIA PTY LIMITED Respondent No. AI 94/237R BETWEEN: GEOFFREY ROY CHARLES MORTON Applicant AND: BUDLYRE PTY LIMITED Respondent CORAM: WILCOX CJ PLACE: SYDNEY DATE: 15 NOVEMBER 1996 EXTEMPORE REASONS FOR JUDGMENT WILCOX CJ: The application before the Court today is for summary dismissal, pursuant to Order 10 rule 7 of the Court's rules, of 11 applications for review. Order 10 rule 7 relevantly provides: "7(i) If a party fails to comply with an order of the court directing that party to take a step in the proceeding any other party may move the Court, on notice: (a) if the party in default is an applicant - for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant in the proceeding" The applications have a lengthy history. The hearing by the Judicial Registrar On 25 November 1994 the applicant, Geoffrey Roy Charles Morton, filed 15 applications alleging unlawful termination of his employment. Each application named a different respondent, each being a company with which Mr Morton was formerly associated. The matters came before Judicial Registrar Linkenbagh at a directions hearing on 5 May 1995. She formed the preliminary view that some applications were out of time. Her reason was that it appeared that Mr Morton had been removed from his position in three companies, Truefeat Pty Limited, Budlyre Pty Limited and Benelan Pty Limited, by orders made in the Federal Court on 23 June 1994. Apparently pursuant to those orders, he ceased to have an association with any of the 15 companies on 4 July 1994. The Judicial Registrar took the preliminary view that the Federal Court orders constituted written notice for the purposes of s 170EA of the Industrial Relations Act 1988. However, she gave Mr Morton an opportunity to file and serve affidavits in support of applications for extensions of time. She directed him to file and serve his affidavits by 4pm on 12 May 1995. She also directed all parties to file and serve submissions concerning extension of time by 15 May. She required that any submissions in reply be filed by 31 May. Mr Morton did not file any affidavits by 12 May and he filed no submissions by 31 May. According to the ex tempore reasons for judgment of the Judicial Registrar following the hearing before her on 2 June 1995, on the day before the hearing Mr Morton filed what she described as "voluminous affidavit material" that she found irrelevant to the proceeding. She also commented that a large part of the material was prima facie prejudicial to the interests of parties unconnected with the proceeding. She concluded that the applicant had not explained sufficiently his delay in bringing his applications before the Court. The Judicial Registrar therefore refused to extend time. Before parting from the case the Judicial Registrar made some additional comments. First, she noted that the applicant had not adduced any evidence as to the identity of his employer or employers, or to substantiate his assertion that he was employed by each of the 15 respondents. She said the only evidence dealing with this matter came from an annexure to the affidavit of Ms June Redfern, the solicitor for the respondents, or at least some of them. This was a group certificate indicating that Mr Morton was employed by Truefeat Pty Limited from 1 July 1993 to 30 June 1994. However, this certificate showed that Mr Morton's remuneration, by way of salary, wages, bonus etc, was $60,008; the remuneration therefore exceeded the maximum figure specified in s 170CD(2) of the Act, as it stood at the relevant date. On this basis his claim would be excluded. Second, the Judicial Registrar considered whether there was material enabling the Court to find that there had been a termination of the employment at the initiative of the employer. She thought there was no such material. Finally, the Judicial Registrar noted that Truefeat Pty Limited was subject to a deed of arrangement at the relevant time, and that Mr Morton had failed to obtain leave to commence the proceeding as required by s 444E(3) of the Corporations Law. She said that, for all these reasons: "... my order in each of these matters is that the application be dismissed". The applications for review - directions hearings Mr Morton filed applications for review in all 15 matters. The applications came before me for telephone directions on 28 July 1995. On that occasion Mr Morton told me about the plethora of litigation, in various courts concerning various issues, with which he was concerned. Because of that litigation, he said, he was not able to prepare his case on the reviews at an early date. Although the practice of the Court is against extensively delaying the hearing of an application for review, in the circumstances I acceded to Mr Morton's request for a lengthy adjournment. I stood the matters over to a further directions hearing on 3 November 1995. On 3 November I conducted a further telephone directions hearing. Mr Morton brought me up to date with his problems in regard to litigation in various courts and put much the same submission he had put in July. Once again I decided to grant him an extensive period in which to get his case in order. I adjourned the matters for further mention on 6 March 1996. On 6 March there was a similar submission, and again reference to problems in other courts. Once again, I granted an extensive adjournment, until 12 June 1996. On 12 June Mr Morton again asked for the matters to be adjourned. He told me what was happening about applications to restore to the register some of the respondent companies, which had apparently become deregistered since the proceedings were instituted. The solicitor for the respondents, Ms Redfern, pressed me to resolve the applications for review without further significant delay. Mr Morton raised with me questions about access to documents. I pointed out to him that he could issue subpoenas for documents and, if there was no objection to his having access to the documents when they were produced to the registry, access could be had. Towards the end of that hearing I said: "I am not going to allow this thing to drag on. What I am going to do is I am going to give you a period of about three months to get this in order. You will get the directions sheet, you can issue the subpoenas and at the end of the time, Ms Redfern, if you have not made any substantial progress, I am going to require you to put your case on affidavit. If you have not done that and there is an application to strike out for want of prosecution then you must expect it will succeed. Have you got that message loud and clear?" I interpolate that, despite the reference to Ms Redfern, the statement was made in the context of an explanation to Mr Morton. Mr Morton responded: "I have got the message loud and clear, your Honour. I am not going to respond in a way that I would say it in an emotional way, but I mean you have taken no consideration obviously in your decision." Mr Morton went on to refer to things he thought I had overlooked. I had not overlooked any of those matters. At the end of Mr Morton's statement, I pointed out to him that I had no summary dismissal application before me at that moment. I said I would make this direction: "Mr Morton. First of all my Associate will send you copies of the directions that are made so far by the Court, that is the Court's record of them, photocopies of them. Secondly, I direct that the evidence of the applicant in these matters be in affidavit form and all affidavits be filed and served by the end of August. I stand over the matter until 17 September and I will give leave to the respondents to move for an order striking out for want of prosecution if the affidavits have not been filed. Tuesday, 17 September, have you got that?" Mr Morton responded: "I got the date of 17 September". I continued: "At 9.30. If you want to proceed with your claim against any of these companies, you have got to put on affidavits setting out your evidence and supported by documents. You can get those by subpoenaing. That has got to be done by the end of August, that is nearly three months. If you cannot get your act together in that time, you are not going to succeed in getting it together, in my opinion. You have got that very clear, have you, as to what the directions are?" Mr Morton responded: "I have got it and I appreciate..." Then his words became indistinct. He finished: "They will be coming up in the copies of the minutes." I asked Ms Redfern whether she had it clear. She said she did, and that was the end of that hearing. Mr Morton subsequently contacted the Registry to obtain confirmation of the date by which the affidavits were to be filed. It is not clear to me why there was any problem about that date being communicated to him, but I accept he may not have been immediately told the date. However, he certainly knew the situation not later than 17 September when the matter was next before the Court, pursuant to the direction I had made in August. Once again this was a telephone directions hearing, Mr Morton being in Canberra. Ms Redfern, who appeared on behalf of some, although I think not all, of the respondents, pointed out that no affidavits had been filed by Mr Morton pursuant to my direction that affidavits be filed by the end of August. Mr Morton acknowledged this. Once again, he gave a lengthy explanation as to the reason. I did not repeat my previous direction, because the time had expired; but I indicated I was not prepared to deal with a summary dismissal application without there being a proper application supported by an affidavit. I therefore directed that affidavits in support of the strike out application be filed and served by Monday 14 October. At that time, I envisaged that the hearing of the applications could take place in Canberra, which I expected to be visiting in the week commencing 28 October in connection with Full Court sittings of the Federal Court. I gave a direction about Mr Morton filing any affidavit relating to the notice of motion by 14 October. Subsequently, my Associate contacted Mr Morton in order to arrange for the hearing of the application for dismissal to be held in Canberra on Friday 1 November. Mr Morton stated this was not convenient to him because he had a hearing before the Administrative Appeals Tribunal that day. Consequently, I indicated that I would hear the matter in Sydney at a later date. On 22 October, the List Clerk forwarded to Mr Morton a notice of listing specifying that the matter would be heard at 10.15 am on 15 November 1996 at Temple Court, 75-85 Elizabeth Street, Sydney. The letter stated that the matter was set down for the hearing of the notices of motion. It also stated that the date of 1 November 1996 at Canberra was vacated. There was no ambiguity about the notice of listing. Notwithstanding this, Mr Morton did not come to Sydney for the hearing today. He apparently went to the Court at Canberra. The Australian Capital Territory District Registrar telephoned my Associate to advise him of this. I then asked that arrangements be made to include Mr Morton in the hearing today by telephone link. In the result Mr Morton has suffered no disadvantage by not being in Sydney. But I point out that he should have complied with the requirement in the notice of listing, and not stayed in Canberra and caused the Court to organise a last-minute telephone hook-up to allow him to participate in the application. The application for an indefinite adjournment Mr Morton filed three short affidavits by the due date. He also filed a lengthy affidavit on 14 October in which he set out a considerable amount of information about his other litigation; there were numerous annexures. Over the telephone he informed me that he also had a more recent affidavit which had not been sworn. I agreed to him arranging for the ACT District Registrar to fax that unsworn affidavit to Sydney whilst the hearing was in progress; he left the Court for a moment to arrange for this to be done. The affidavit, which is dated today and initialled but not signed, has been read and treated as evidence before the Court. I mention some of these matters simply to point out the extent to which the Court has endeavoured to accommodate Mr Morton. I do understand that he is suffering stress from the litigation frenzy in which he is engaged. It is not for me to determine whether it was a sensible course for him to embark on all the proceedings he has instituted; but there is no question that he is fighting litigation on several different fronts. This must create a problem for him. The Court has understood all this and I have endeavoured to make allowances, as far as possible, to minimise his stress. Having said that, at the end of the day, the question for the Court is what course ought to be taken. The submission put by Mr Morton is that all the cases should simply be stood over indefinitely. I indicated to Mr Morton, during the course of discussion, my impression that his cases were no closer to being ready for hearing today than when he filed his applications for review in June 1995. Mr Morton unhesitatingly agreed. When I asked him when he thought the cases would be ready for hearing, he said he really had no idea. So the proposition, frankly put before the Court, is that it should countenance a situation where the cases are left in limbo for an indefinite period. Mr Morton submits this would cause no prejudice or problem to the respondents. The respondents tendered no evidence as to the consequences of delay. Certain things were said to me from the bar table. However, when I indicated I would require evidence of those matters if I was to act on them, counsel did not press the matters he had mentioned and I indicated I would not take them into account. Accordingly, I am left with a situation where there is an application for an indefinite delay without any assurance that the cases will ever be ready for hearing, and certainly no indication of when that might be; but also a lack of any evidence of particular prejudice to the respondents. The Court does not, of course, need evidence in order to appreciate that delay almost always causes problems. If these claims of unlawful termination of employment ever came on for hearing on their merits, the effluxion of time would almost certainly be found to have dimmed memories and made it more difficult for the relevant facts to be determined. Although there is no evidence dealing with this matter, it is common sense and common experience that long delay imposes problems like that. If Mr Morton was able give me, with some degree of credibility, a date when the cases would be ready for hearing, I would be inclined to give him yet a further opportunity of putting his house in order. I say this because of my understanding of his burdens, and notwithstanding that he chose to put himself under them. But the difficulty is that I have no reason to believe he will ever be ready for these matters to be heard. Mr Morton referred me to principles that apply in these cases and quoted what is set out in para 26 of part 5.5 of "The Laws of Australia" (Law Book Co. 1994). That paragraph deals with principles adopted in the United Kingdom governing dismissal of actions for want of prosecution. I pointed out to Mr Morton that the approach in Australia is somewhat different, as appears quite clearly in the following paragraphs of "The Laws of Australia" and in particular at para 28 where reference is made to the principles applied in a Court that has a system of case flow management. Paragraph 28 speaks of the position in the Federal Court; but exactly the same situation applies in this Court. In particular, the paragraph refers to Lenijamar Pty Limited v AGC Advances Limited (1990) 27 FCR 388. That was a decision of a Full Court of the Federal Court consisting of Pincus and Gummow JJ and myself. In a joint judgment, Gummow J and I said, at 369: "The discretion conferred by O 10, r 7, is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. The two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding." Mr Morton pointed out that the case management system was designed for a court in which parties are generally represented by lawyers. I accept this. I also accept that the system has to be modified from time to time where people are appearing in person, as in this case. It was for that reason that I earlier gave the extraordinary extensions of time to which I have referred. But, at the end of the day, a court either has a case management system or it does not. If it does have a case management system, it seems to me axiomatic that with, every allowance and offer of generosity by the Court, parties have to co-operate with the Court in getting cases ready for hearing. As Lenijamar points out, if a party is unable or unwilling to do this, then that is a circumstance which might attract the exercise of the discretion conferred by Order 10 rule 7. I think this is such a case. This is also a case where the history of the matter is relevant because of the cumulative effect of the delays which have occurred. The respondents have been brought to Court on a number of occasions in connection with these cases. In coming to the conclusion that I should accede to the respondents' current applications, I do not place any reliance on the view formed by the Judicial Registrar as to the hopelessness of the 15 claims. The review procedure requires the reviewing judge to examine the merits of the Judicial Registrar's decision himself or herself, and not rely on the Judicial Registrar's view. My conclusion is based simply on the fact that, some 17 months after the applications for review were filed, and despite unusual steps taken by the Court to assist Mr Morton in getting his cases in order, he has not been able to do so and is unable to give any indication when he might be able to do so. It seems to me I would be moving from understanding of his position, and some generosity about it, to the point of being unfair to the respondents if I kept the cases alive any longer. Accordingly, I propose to accede to the applications. The applications are made in only 11 of the 15 cases, being the matters in which Messrs Hunt and Hunt appear for the respondents. As far as I am aware, there is no current appearance for the respondents in any of the other four cases. Three of those companies are currently deregistered. The fourth, Update Publishing Pty Limited, was deregistered but recently restored to the register. As no application is made to me about those four matters. I will simply take the unusual course of ordering that they be stood over generally; that is to say, matters 94/226R Morton v Club Champions Pty Limited; 94/227R Morton v Update Publishing Pty Limited; 94/228R Morton v Hot Cherry Pty Limited; and 94/230R Morton v Xcitement Express Pty Limited. The order I make in each of the following 11 matters is that the application for review be dismissed: 94/223R Morton v Mack Studio Pty Limited; 94/224R Morton v Lulu's Adult Entertainment PLC; 94/225R Morton v Benelan Pty Limited; 94/229R Morton v Adam and Eve Video Pty Limited; 94/231R Morton v Truefeat Pty Limited; 94/232R Morton v Mustang Ranch Adult Shop Pty Limited; 94/233R Morton v Budtint Pty Limited; 94/234R Morton v Kitloft Pty Limited; 94/235R Morton v Melhero Pty Limited; 94/236R Morton v Champion Video of Australia Pty Limited; and 94/237R Morton v Budlyre Pty Limited. I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment of his Honour Chief Justice Wilcox. Associate: Dated: 15 November 1996 APPEARANCES The Applicant appeared in person Counsel for the Respondent: D Stack Solicitor for the Respondent: Hunt & Hunt Date of hearing: 15 November 1996