Petty v University of Adelaide [1996] IRCA 635

DECISION NO:635/96 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - PRACTICE and PROCEDURE - application to adduce further evidence after decision reserved. Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988) State of Victoria v The Commonwealth of Australia (1996) 138 ALR 129 MICHAEL ANDREW PETTY v UNIVERSITY OF ADELAIDE SA 1050 of 1996 Before : RITTER JR Place : PERTH Date of Judgment : 19 DECEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) SA 1050 of 1996 B E T W E E N: MICHAEL ANDREW PETTY

Applicant

A N D:

UNIVERSITY OF ADELAIDE

Respondent

MINUTE OF ORDER 19 DECEMBER 1996 PERTH RITTER JR THE COURT ORDERS AND DECLARES THAT: 1. The application of the applicant to adduce further evidence is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) SA 1050 of 1996 B E T W E E N: MICHAEL ANDREW PETTY Applicant A N D: UNIVERSITY OF ADELAIDE Respondent REASONS FOR DECISION 19 DECEMBER 1996 RITTER JR This is an application under section 170EA of the Workplace Relations Act ("the Act"). It has taken an unusual course. It was heard by me in Adelaide on 1 and 2 August 1996. At the conclusion of the hearing I reserved my decision. During the course of the hearing, Mr Weatherill, for the applicant, expressly conceded that section 170DE(1) of the Act had not been contravened by the respondent. The applicant's case, as then presented, was that there had been a contravention of section 170DE(2) because of the allegedly inadequate termination payment made to Mr Petty by the respondent, on the termination of his employment. It was accepted that the termination of Mr Petty's employment was a genuine redundancy. Further, it was not alleged that there had been a contravention of the Act by reason of any failure to offer Mr Petty alternative employment within the University rather than terminate his employment. On 4 September 1996 the High Court handed down its decision in State of Victoria v The Commonwealth of Australia (1996), now reported at 138 ALR 129. The court there declared section 170DE(2) of the Act to be constitutionally invalid. As a result of this, through the court registry, I requested further written submissions from the parties. The respondent's submission was that as there was a clearly established valid reason for termination, namely redundancy, and the thrust of the applicant's case was that the payment made on termination was such as to render the dismissal harsh, unjust or unreasonable, the High Court's decision that section 170DE(2) was invalid meant that the applicant's claim was doomed to failure. These submissions were dated 13 September 1996. The applicant's solicitors provided written submissions dated 20 September 1996 which sought to withdraw the concession that the termination was made for a valid reason. The applicant indicated that it wanted to now argue that the termination of employment was not valid because the amount of termination payment was inadequate in all of the circumstances. The submissions did not address the question of the circumstances in which the court could consider this argument given the express concessions made by the applicant during the hearing. Therefore, I directed the registry to seek further written submissions from the parties on this issue. Further written submissions were forthcoming and a further hearing, by video link, occurred on 6 December 1996, to allow counsel to speak to their submissions. In the written submissions of Mr Weatherill, it was said that on 29 October 1996 the applicant provided instructions to make the following submissions: (a) The applicant reiterates the earlier written submission that the reason for termination was not valid because the amount of termination payment was inadequate in all of the circumstances; (b) The applicant further argues, for the first time, that the termination was not valid because the applicant's position was not genuinely redundant. Suitable alternative work was available elsewhere; (c) The applicant further asks the court to allow him to agitate the argument referred to in paragraph (b) herein after he has had the opportunity to call further evidence in support of this argument. In both his written submissions and his oral argument before the court, Mr Short, for the respondent, strongly opposed the application by the applicant to adduce further evidence. When I asked Mr Weatherill about the matter, he advised that the further evidence which was proposed to be given was that of the applicant himself. He conceded that the evidence was not fresh but simply new. I indicated to the parties on 6 December 1996 that I would provide a judgment, on the issue of whether any new evidence could be called, in the week commencing 16 December 1996. The reason for this was that I am listed to hear cases in Adelaide in the final week of January 1997, and if further evidence was to be given in this matter it would be appropriate that arrangements be made for the evidence to be given during that week. As stated, Mr Weatherill said that the proposed evidence to be given by the applicant was new as opposed to fresh. He indicated that the evidence to be given would be of other job opportunities which constituted suitable alternative employment which could have been offered to the applicant instead of terminating his employment. I do not think that the application to adduce further evidence should be allowed. It is important that litigation have a finality about it. This principle is enshrined in various evidential and procedural rules, such as the rule that generally speaking an applicant should not be permitted to reopen its case. The present application goes beyond an applicant seeking to reopen its case. The applicant seeks to call further evidence after the case of both the applicant and the respondent has closed and the decision has been reserved. Further, the additional evidence could have been given at an earlier stage. The reason it was not was probably for tactical reasons. In saying this I do not use the expression "tactical reason" in any pejorative sense. It simply means that the applicant's counsel probably thought that the case of the applicant was better presented in the manner in which it was. It may be that, if the High Court decision in State of Victoria v The Commonwealth, had been handed down prior to the hearing of the matter in August, the applicant may have adduced the further evidence which he now wishes to and have advanced the argument that there was not a valid reason for termination because there was other employment available. However, whilst it may be said that the High Court declaring the section upon which Mr Petty based his claim to be constitutionally invalid is not a normal circumstance, nor however is it an unknown circumstance. The High Court having reserved its decision on the validity of the amendments to the Act was, of course, well known. I do not regard the High Court decision being given on 4 September 1996 as a circumstance so unusual so as to allow the applicant to give new evidence at this very late stage of the proceedings. In any event, it seems to me, that if the evidence and argument had great substance, it would have been likely to have been presented, in conjunction with the case that the applicant did present, when the matter came before the court on 1 and 2 August 1996 For these reasons, I will dismiss the applicant's application to adduce further evidence. As indicated to the parties, I will write a separate judgment about the other arguments raised by the applicant at the hearing on 6 December 1996 and in relation to the decision which was reserved on 2 August 1996. Counsel for both the parties indicated that they did not require any further opportunity to present oral submissions on those matters if I refused the application to adduce further evidence.