100425763

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES JONATHON PAUL HARP

CLAIMANT

 -v-

 TELSTRA CORPORATION LIMITED (INFRASTRUCTURE SERVICES NETWORK DESIGN & CONSTRUCTION GROUP)

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE WEDNESDAY 3 NOVEMBER 2004

CLAIM NO M 204 OF 2004

CITATION NO. 2004 WAIRC 13448

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Representation

Claimant  Ms K Scoble (of Counsel) appeared for the Claimant.

Respondent Ms E Athanasiou (of Counsel) instructed by Freehills Lawyers appeared for the Respondent.

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Reasons for Decision

(Delivered extemporaneously at the conclusion of the hearing, extracted from the transcript and edited by His Worship)

Application to adjourn regulation 38(3) referral

1         The Claimant seeks an adjournment of this matter which has been referred to this Court pursuant to regulation 38 of the Industrial Magistrates’ Courts (General Jurisdiction) Regulations 2000.  The clerk by virtue of the Claimant’s non-compliance with the clerk’s direction has referred the matter to the Court.

2         The regulations provide for a process that enables the timely compliance with directions and it is important that the clerk’s directions be given effect otherwise such directions become nugatory.  Given that the clerk by virtue of the non-compliance has referred the matter to the Court, any further delay in dealing with the matter, in my view, would be undesirable.  I would have thought that I should hear from the parties to determine what is to happen.  In the end the claim might be dismissed or the Court may make other orders but in any event there needs to be some intervention by this Court so that the matter is brought back into line.  I reject the application for the adjournment.  I can see no good reason for it.  The Claimant is well aware of the nature of the application and ought to be in a position to explain to the Court why there has been a delay.  The Court can then take account of those matters in any order that it might make in its consideration of the explanation.

3         I am not allowing the adjournment application.  The matter will be heard today.  The outcome will follow my consideration of the submissions of the parties.

Regulation 38 (3) referral

4         I am dealing with a matter which has been referred to me by the clerk pursuant to regulation 38(3) of the Industrial Magistrates’ Courts (General Jurisdiction) Regulations 2000.  On 15 September 2004 the clerk gave certain directions following the pre-trial conference.  The directions have not been complied with by the Claimant and as a result of that, the Respondent has not been able to comply with the consequential directions.

5         It is important that directions or orders be made with respect to particulars and outline of the case in support of the claim.  The Respondent, in particular, and for that matter the Court should know what the claim is about.  The Respondent is entitled to know the case that it has to meet.  The production of the outline of the case goes to the identification of the issues between the parties.  It is important that directions or orders of that type be complied with in a timely manner.  I say that because the maxim of “justice delayed is justice denied” applies.  If matters are delayed for significant periods memories inevitably fade and there are consequences that flow from that.  It is important that claims be dealt with expeditiously so that the matters are resolved and brought to finality as soon as possible.

6         Having said that, I recognise that the failure to comply with the procedural requirements must always play a secondary role to the substantive merits of the case.  It will always be the case that a matter in dispute between the parties ought to be resolved on the merits.  So it is the case that the dismissal of a matter for non-compliance with an interlocutory process or a procedural process will be the exception rather than the rule.  More often than not the Court will exercise its discretion in favour of the party who has not complied so as to enable that party an opportunity to comply with the orders or directions that have been made in order that the matter can ultimately be resolved on its merits.  In this case non-compliance with the clerk's directions is acknowledged.  Notwithstanding that, in my view, the stage has not yet been reached where there ought to be judgment of dismissal entered against the Claimant.  That should occur only when it is demonstrated that there has been a persistent failure on the part of the Claimant to comply with directions or orders.  That has not occurred here.  There has been one failure to comply with the clerk's directions.  Clearly dismissal is not warranted at this stage of the proceedings.  That is not to say that the Court does not regard non-compliance with the clerk's directions or its own orders as being a serious matter.  However my discretion should be exercised in favour of the Claimant so that he is given an opportunity to comply.

7         What is required here, in my view, is that there ought to be orders made putting the Claimant on notice that a further failure to comply with the orders may well lead to the real possibility of the matter being dismissed.  For the reasons stated the matter will not be dismissed.  I will make orders that the Claimant comply with the directions of the clerk.  Consequential orders will flow from that.  If there were to be non-compliance with these orders by the Claimant, then the claim may well be dismissed.

8         In a moment I will announce the orders that I propose to make, however before doing so I will also address the issue of costs.

Costs

9         As to costs, I take the view that I have no power to award costs on an interlocutory basis.  Indeed, there is no power to order costs thrown away as sought by the Respondent in these circumstances.  Costs can, in my view, only be determined upon the conclusion of the matter given that there is a need to determine whether the proceedings have been frivolously or vexatiously instituted.  That cannot occur at this stage given that the matter is not concluded.  The application for costs is premature.  I decline to make an order for costs.

Orders

10     It follows that the following orders be made:

1. The application made by the Claimant for an adjournment of the regulation 38(3) referral is dismissed.
2. The Claimant shall file and serve an outline of the case in support of the claim by 19 November 2004. 
3. The Respondent shall file and serve an outline of the case in defence of the claim by 10 December 2004.
4. The parties shall file and serve on each other a copy of any documents that they intend to use as evidence by 31 December 2004.
5. If the Claimant fails to comply with order 2 the claim may be dismissed.
6. There is no order as to costs.

G Cicchini

Industrial Magistrate