Industrial Relations Commission of New South Wales CITATION: Pritchard v Trident Global Pty Ltd [2006] NSWIRComm 83 APPLICANT Jason Patrick Pritchard PARTIES: RESPONDENT Trident Global Pty Limited FILE NUMBER(S): IRC 6269 of 2005 CORAM: Staff J Practice and procedure - Unfair Dismissal application - Application by respondent for adjournment of hearing and variation of directions - Practice Direction 17 - Clear and compelling reasons required for adjournment - Adjournment refused - Limited variation to directions granted CATCHWORDS: Unfair Dismissal application - Application by respondent for adjournment of hearing and variation of directions - Practice Direction 17 - Clear and compelling reasons required for adjournment - Adjournment refused - Limited variation to directions granted LEGISLATION CITED: Industrial Relations Act 1996 Dedov v Apollo Life Sciences Ltd [2006] NSWIRComm 55 CASES CITED: Gu v Nature's Care Manufacture Pty Ltd [2006] NSWIRComm 39 Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36 HEARING DATES: 08/03/2006 EXTEMPORE JUDGMENT DATE: 03/08/2006 APPLICANT Solicitor: Ms G Ramensky Ramensky Lawyers LEGAL REPRESENTATIVES: RESPONDENT Solicitor: Ms R Batt Rosey Batt & Associates JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Staff J 8 March 2006 Matter No IRC 6269 of 2005 JASON PATRICK PRITCHARD v TRIDENT GLOBAL PTY LIMITED Application by Jason Patrick Pritchard pursuant to s 84 of the Industrial Relations Act 1996 re unfair dismissal EX TEMPORE DECISION [2006] NSWIRComm 83 1 This matter has been referred to me in accordance with the procedures set out in Practice Direction 17 of the Industrial Relations Commission of New South Wales to determine an application by Trident Global Pty Limited ("the respondent") for an adjournment of the hearing fixed for 28 and 29 March 2006. 2 The history of this matter is that on 1 December 2005, Jason Pritchard ("the applicant") filed an application pursuant to s 84 of the Industrial Relations Act 1996 seeking relief from unfair dismissal. The respondent's reply to the application was filed on 14 December 2005. 3 The applicant was employed as a business development manager with the respondent, whose registered office is located in South Australia. The applicant's place of work was Bondi Junction, New South Wales. 4 A conciliation before Commissioner Connor was initially appointed for 16 January 2006. This conference was adjourned at the request of the respondent to 1 February 2006. The conciliation was unsuccessful and the following directions were made: (i) the applicant to file and serve any witness statements on or before 23 February 2006; (ii) the respondent to file and serve any witness statements on or before 16 March 2006; (iii) the applicant to file and serve any witness statements in reply on or before 23 March 2006. 5 On 27 February 2006, the solicitors for the applicant filed an affidavit of the applicant. 6 On 28 February 2006, the parties were advised that this matter had been fixed for hearing on 28 and 29 March 2006. 7 On 1 March 2006, the solicitors for the respondent wrote to the Industrial Registrar advising that on 24 February 2006, their client received from the applicant, by facsimile, an incomplete copy of an affidavit of the applicant. The affidavit referred to 17 annexures which had not been provided to the respondent. It was contended, without this material, the respondent could not properly prepare for the hearing. 8 Furthermore, it was contended that the respondent's Human Resources and Financial Manager, Ms Anna Whiteread, "went on leave last Wednesday, 2 February 2006 (sic)," and was married on 25 February 2006 and is currently on her honeymoon overseas. Ms Whiteread returns to work on 20 March 2006. 9 It was further contended that Ms Whiteread was instrumental in the warnings given to the applicant, and in his termination, which are integral aspects of the applicant's case. 10 The respondent's solicitors further contended that they were therefore unable to take complete instructions from their client in order to prepare for the hearing in the matter, or to comply with the order that the respondent file all of its written statements by 16 March 2006, due to Ms Whiteread's absence on her honeymoon. 11 In these circumstances, it was submitted that the respondent would therefore be unfairly prejudiced if the matter was to be heard on 28 and 29 March 2006 and the orders were to stand. An application for an adjournment of the hearing was therefore sought. 12 Ms G Ramensky, solicitor, appeared for the applicant, and submitted that it was a matter for the Commission as to whether the adjournment was granted. However, Ms Ramensky noted that when the matter was before the Commission on 1 February 2006 that a Director and the General Manager of the respondent were personally in the Commission and should have been aware that Ms Whiteread was going on leave on 20 February 2006 and that her evidence would be required. 13 As has been observed in a number of recent decisions of this Commission, the purpose of Practice Direction 17 is to facilitate the resolution of unfair dismissal matters in a just, quick and cost-effective manner. Adjournments are dealt with in paragraph 13 of the Practice Direction which relevantly provides: … b) The day (or days) in which the application will be dealt with by arbitration is definite. Any applications for adjournment of arbitration dates must be made in a timely way, be in writing and contain full grounds. Such applications will be considered and determined by a Presidential Member. It should be understood that adjournment applications will be granted only on clear and compelling grounds. … 14 Practice Direction 17 has been applied strictly by the Commission. See for example: Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36; Gu v Nature's Care Manufacture Pty Ltd [2006] NSWIRComm 39; Dedov v Apollo Life Sciences Ltd [2006] NSWIRComm 55. 15 Needless to say, the Practice Direction 17 applies equally to respondents as it does to applicants. 16 Although there was a defect in the affidavit provided to the respondent, the majority, if not all, of the annexures to the applicant's affidavit are documents that would be in the possession of the respondent. For example, the annexures include the letter of offer to the applicant; the letter of termination to the applicant; wage slips; sales target and commission structure documents; emails between the applicant and the respondent; correspondence between the applicant and the respondent and the advertisement placed by the respondent for the applicant's position. 17 In my view, the defect in the affidavit could have been cured without any delay or prejudice to the respondent. It is not, in my view, a basis in itself, for the matter to be adjourned. In making this observation, it is not to say that a more serious defect in the provision of affidavit material would not warrant an adjournment. 18 In respect of Ms Whiteread's annual leave, this was clearly a matter about which the respondent was on notice. 19 The respondent was provided with a copy of the applicant's affidavit on 24 February 2006, albeit, by facsimile and without annexures. A complete copy was provided on or about 1 March 2006. I am informed that Ms Whiteread returns from annual leave on 20 March 2006 and clearly will be available for the hearing of this matter, which is listed to commence on 28 March 2006. 20 The Practice Direction makes it plain that adjournment applications will be granted only on clear and compelling grounds. I am not persuaded that such grounds exist in respect of this application. It is therefore rejected. 21 In respect of the application to vary the timetable fixed for the filing and serving of the respondent's affidavits, I am prepared to vary the directions in a limited way so as to allow the respondent to file and serve any affidavit of Ms Whiteread that it wishes to rely upon on or before 4.00 pm on Friday 24 March 2006. All other affidavits that the respondent wishes to rely upon should be filed and served in accordance with the directions, that is, on or before 16 March 2006. 22 The applicant is to file and serve any affidavit in reply to Ms Whiteread's affidavit on or before 4.00 pm on Monday 27 March 2006. In this regard, I note that the respondent and its legal representatives will be travelling to Sydney on this day. Arrangements should be made between the solicitor for the applicant and the solicitor for the respondent to ensure that any affidavit in reply to Ms Whiteread's affidavit is received by the respondent's solicitor in Sydney on 27 March 2006. All other affidavits that the applicant wishes to file in reply should be filed and served on or before 23 March 2006 in accordance with the direction. That direction is only varied in respect of any affidavit in reply to the affidavit of Ms Whiteread. 23 The application for an adjournment of the hearing listed for 28 and 29 March 2006 is refused. The directions made by the Commission on 16 January 2006 remain, save and except, as varied by this decision. 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.