Industrial Relations Commission of New South Wales in Court Session CITATION : Ralph Rintoule v Australian Motor Vehicle Consultants Pty Limited and Anor [2001] NSWIRComm 212 APPLICANT: Ralph Rintoule PARTIES : FIRST RESPONDENT: Australian Motor Vehicle Consultants Pty Limited SECOND RESPONDENT: Phillip Lloyd Davis FILE NUMBER: IRC5216 of 2001 CORAM: Kavanagh J CATCHWORDS : Consideration of s174 of the Industrial Relations Act 1996 and Part 4 Rule 1 of the Rules of the Supreme Court Act 1970 - Terms of Settlement filed in conciliation - payments not made in accordance with Terms of Settlement - application for court to enter Judgment in Terms of Settlement - notice applicant is not well Industrial Relations Act 1996 LEGISLATION CITED : Supreme Court Act 1970 Industrial Relations Act 1996 HEARING DATES: 07/11/2001; 08/17/2001; 08/20/2001; 08/28/2001 EXTEMPORE JUDGMENT DATE : 09/05/2001 APPLICANT: Mr J.P. Phillips of counsel Solicitors: LEGAL REPRESENTATIVES: Beilby Poulden Costello RESPONDENTS: Mr P.L.Davis JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : 5 September 2001 ex temp IRC5216 of 2000 RALPH RINTOULE v AUSTRALIAN MOTOR VEHICLE CONSULTANTS PTY LIMITED Application under s106 of the Industrial Relations Act 1996. EX TEMPORE DECISION [2001 NSWIRComm212] 1 HER HONOUR: This is an application that came before the Commission under s106 of the Industrial Relations Act 1996. In accordance with the provisions of the Act, the matter was referred to me for conciliation. 2 On 11 July 2001 Mr J. Phillips of counsel appeared for the interests of the applicant and Mr P. Davis for the interests of the respondent, which, at that stage, was named the Australian Motor Vehicle Consultants Pty Limited. 3 After the process of conciliation was entertained in accordance with the Act, the parties informed the Commission the matter was resolved. Terms of settlement in the following form were handed to the Court: By consent without admissions, By Order 1. The respondents to pay to the applicant the sum of . . . as unpaid superannuation payments. 2. The respondents to pay to the applicant the sum of . . . as unpaid salary and annual leave. 3. The respondents to pay the applicant's costs, as agreed, in the sum of . . .inclusive of GST. 4. The sum referred to in paragraph Two (2) above to be subject to the appropriate taxation deductions. 5. The sums referred to in paragraphs one, two, Three and Four above to be paid within Twenty-Eight days (28 days) of the date of these terms noted below. 6. It is noted that the respondents' will pay the said sums in two cheques being one cheque for superannuation paid to Sun Super in the sum of . . . and the balance of the sums referred to above being the sum of . . . , as costs and the sum of . . . , as unpaid salary and annual leave, this last sum less appropriate deductions for taxation be paid to the applicant's solicitors, Messrs Beilby Poulden & Costello. 7. The respondents acknowledge and agree that should the sums referred to above not be paid within 28 days, then the respondents solemnly agree and acknowledge that these orders can be registered as a judgment and be enforced as such and that interest at Supreme Court rates, as applicable, to run on the unpaid judgment or such part of it which remains unpaid. 8. That the second respondent, Phillip Lloyd Davis, is added as a party to these proceedings. Dated the 11th July 2001." (. . . Amounts confidential) 4 Clause 8 of the terms of settlement added a second respondent, Phillip Lloyd Davis. Mr Davis signed the terms of settlement as the second respondent, in person, and, on behalf of the first respondent, as its managing director. 5 In accepting the Terms of Settlement the Commission commented and questioned: HER HONOUR: Mr Davis has been given an opportunity to seek legal advice in relation to the ramifications as pointed out by Mr Phillips but with full knowledge he has determined he wishes to proceed with the settlement, is that so, Mr Davis? DAVIS Correct. 6 In accordance with the practice in my Court, the matter was stood over for a Report Back on 17 August 2001. The Report Back was listed to obtain from the parties an assurance the Terms of Settlement had been complied with before the Court accepts a Notice of Discontinuance signed for and on behalf of the parties. 7 On 17 August 2001 at the Report Back, Ms S. Hows appeared for the applicant and there was no appearance for the respondent. The matter was then stood over for further Report Back at 9.30am on 20 August 2001. 8 On 20 August 2001 at 8.58am the Commission Court received a facsimile transmission in the following terms: I am the de facto of Phillip Lloyd Davis, managing director, Australian Motor Vehicle Consultants Pty Limited. I believe that Phillip was due at a hearing on Friday 17 August 2001, regarding settlement of an agreement with Mr Rintoule dated 11 July 2001. I also believe a further hearing has been scheduled for today, 20 August 2001. Phillip will be unable to attend today's hearing due to illness. Phillip endeavoured to re-finance his business to settle his agreement with Mr Rintoule. This could not be achieved, and it appears that the company has to go into bankruptcy. This has caused tremendous stress on Phillip, who is currently under the supervision of Professor Philip Mitchell, School of Psychiatry, The University of New South Wales, for severe depression. Phillip is currently on a course of anti-depressants that Phillip cannot function normally on, or be responsible for decisions or his actions. I do not know what actions need to take place from here, but if a further hearing could be nominated at a future date, where I would be able to further advise the Court of the situation, or maybe visit you myself to discuss what alternatives are available, I would appreciate this. I am available by telephone during the day on (. . .) or (. . .). Yours faithfully Janice Wortley 9 Given the request for a future date in the matter, the matter was stood over to 28 August 2001. 10 On 27 August 2001 the Court received another fax from Ms Wortley in the following terms: In relation to the hearing Tuesday 28 August 2001 at 9.30am the respondent, Mr Phillip Davis, of Australian Motor Vehicle Consultants Pty Limited, will be unable to attend. As previously discussed, Mr Davis is suffering from a severe anxiety depression disorder, and is mentally incapable of attending Court proceedings for at least the next four weeks. A doctor's certificate stating same is attached. As previously discussed, Mr Davis is in serious financial difficulty and is not in a position to have counsel represent him. As previously discussed, I am unable to represent Mr Davis as I am not a party to this matter. I would be most pleased to discuss any matters which I may be able to help. (phone numbers enclosed). Yours faithfully Jan Wortley. 11 On 28 August 2001 Mr Phillips of counsel for the applicant applied for the Commission to enter Judgment in the form of the Terms of Settlement as filed in the Commission on 11 July 2001. A further attempt was made to contact Mr Davis. Ms Wortley wrote again to the Commission on 3 September 2001 in the following terms: Regarding phone call from your office on 28.8.01 re mention on 5.9.01. I have spoken to your office on a number of occasions outlining the reasons why Mr Phillip Davis cannot attend court at this time. As his doctor's certificate indicates, Mr Davis is suffering from a severe anxiety depression disorder. If this condition exacerbates, Mr Davis may require hospitalisation. I again attach a doctor's certificate indicating Mr Davis's condition, and requesting leave from the Court. As previously discussed, I am unable to represent Mr Davis as I am not a party to this matter. I am available on (phone numbers attached) for any further assistance I may be able to provide. Yours faithfully Jan Wortley. She attached to this letter a medical certificate from a GP, not a psychiatrist, suggesting that Mr Davis is suffering from severe anxiety and he was mentally incapable of attending court proceedings. The medical certificate does not reveal when Mr Davis started to have either the symptoms or began to receive treatment for the a condition. 12 Every opportunity has been given by the Commission to the Respondents for Mr Davis to attend at court and make the appropriate application in consideration of the Court entering Judgment. 13 In support of its application for Judgment to be entered, the applicant relies on Part 40 Rule 1 of the Supreme Court Act 1970 Rules, which rule states, under the heading: General Relief: The Court may, at any stage of any proceedings, on the application of any party, give such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process. 14 Further, the provisions of s174 of the Industrial Relations Act 1996 headed: Powers When Application Settled by Conciliation: If a matter that is the subject of an application to the Commission under this Act is settled by conciliation, the Commission may; (a) dismiss the application, or (b) make an order on the agreed terms for settlement. 15 I am satisfied that every opportunity has been given to the respondents in relation to any arguments that should be considered before making orders in this matter. 16 I am further persuaded in accordance with the practice of this Court, there was an assurance given by Mr Davis that he was given the opportunity to seek legal advice prior to the Court accepting the Terms of Settlement and that he understood the Terms of Settlement. Such opportunity was rejected by Mr Davis. 17 Accordingly, I enter an Order of the Court in accordance with the Terms of Settlement signed for and on behalf of all parties dated 11 July 2001. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.