100526152

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES PAUL DANIEL GREEN

CLAIMANT

 -v-

 SPOTLESS SERVICES AUSTRALIA LIMITED

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE  WEDNESDAY, 24 NOVEMBER 2004

CLAIM NO M 64 OF 2003

CITATION NO. 2005 WAIRC 00011

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Representation

Claimant Mr PG Laskaris (of Counsel) instructed by Slater & Gordon Lawyers appeared for the Claimant.

Respondent Ms L Gibbs (of Counsel) of CCI Legal, Barristers & Solicitors 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)

1         I am dealing with an interlocutory application filed by the Claimant on 23 November 2004 in which he seeks to vacate the hearing date which was set for today and tomorrow.  There has not been compliance with the regulations concerning the filing and service of the application however the Respondent does not take issue with that.  Accordingly I am called upon to consider the application for the adjournment on the basis that the Claimant is currently unavailable because he is overseas.

2         The Claimant departed Australia yesterday bound for Iraq.  He works in Iraq.  He has known that he would not be available for the hearing for some considerable period time and at least from 6 November 2004.  He had however hoped to rearrange his travel plans so that he would be able to remain for the trial.  His attempts to do so proved fruitless because of the difficulty in accessing secure flights within Iraq operated by the armed forces of the USA.  In his affidavit sworn yesterday in support of his application he said that he made several attempts to alter his travel plans so that he would be in a position to remain to give evidence at the hearing.  He was hopeful up until just prior to making this application of being able to postpone his departure but in the end was not able to do so.  His failure to depart would have inevitably resulted in him losing his job. The extent to which he went in attempting to alter his travel plans has not been disclosed.  There is no detail in that regard.  There has simply been a bland statement on his part that he has made attempts to do so.  I can only take that at face value.  In the end he has testified under oath that he has attempted to change his travel plans so that he could be here today and tomorrow for the trail of the matter.  Unfortunately the Claimant failed to disclose his situation to all those concerned including the Respondent and the Court.  His application to adjourn the trial was made very late, in fact the day before the commencement of the trial. 

3         There can be no doubt that the Respondent has been very much caught by surprise.  By the time the application was made the Respondent had already caused a witness to be flown from Melbourne to testify at the hearing.  Another witness also had to make special arrangements to attend the hearing.  The Respondent accordingly appears today with its witnesses and is ready for the hearing.  Any adjournment of the hearing will inevitably result in expense and inconvenience to the Respondent.   Accordingly it is the case that the Claimant’s conduct in not putting all those concerned on notice about his situation and in making this application very late is a matter of grave concern.  He has been dilatory.  If he had acted earlier the expense incurred by the Respondent may have been avoided. 

4         It is with that background in mind that the merits of the application ought be considered.  One of the factors necessarily considered is the nature of the claim.  A consideration of the papers on file (I avoid using the word “pleadings” because this is not a Court of pleadings) reveals that there is a legitimate contest between the parties in relation to the construction of the applicable industrial agreement.  The Respondent says that the claim is without merit and the Claimant should not be permitted to have this matter adjourned given that he has little chance of success.  However it seems to me that the claim is arguable and it cannot be said on the face of it that the claim is without merit.  The matter needs to be argued in the usual way.  It follows therefore that the Claimant would necessarily need to give evidence to establish his case.  Any failure to give evidence on material issues would inevitably result in the Claimant not being able to prove his claim.  Accordingly a refusal of the adjournment application would inevitably result in the claim being dismissed.  The Claimant argues that if that were to occur injustice would result to him.  He maintains that if the hearing were to be adjourned the Respondent would not suffer injustice.  In support of his contention he cites Myers v Myers [1969] WAR 19 in which His Honour Jackson J, as he then was, said at page 21:

“To grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made.  But where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless in turn this would mean serious injustice to the other party.  An appellate court will not interfere with a discretionary order of this sort unless there is a strong reason for believing that an injustice has resulted.”

5         His Honour also said at that page:

“‘To hear the other side’ is a basic principle of justice, and this means not only that a party may appear by counsel on the hearing but should be allowed to give evidence for himself when his evidence is material.”

6         The Claimant maintains that he is in exactly the same situation as the appellant in Myers (supra) given that he needs to give evidence in the hearing in this matter.  The refusal of an adjournment leading to an inability to give evidence would result in injustice to him.  There is force in his contention.

7         The Respondent opposes the application.  Counsel for the Respondent, in submissions, reviewed the conduct of the Claimant throughout the course of these proceedings in an attempt to exemplify the dilatory nature of the Claimant.  The Respondent is also concerned about the lateness of the application.  The Respondent contends that if the Claimant were to be successful in his application then it would suffer a consequent waste of time and money.  It is argued that the Claimant may well have avoided the situation by making his application at an earlier time.  His failure to make the application earlier demonstrates vexatiousness.  In essence the Respondent says that the Claimant has acted in the way that he has in order to punish the Respondent.  Accordingly the application for an adjournment should be refused.  If not refused the Court should order costs against the Claimant given that the Claimant’s conduct demonstrates vexatiousness on his part.  In that regard the Respondent says that this Court has power to order costs pursuant to section 347 of the Workplace Relations Act 1996.  It is argued that the authority to award costs in interlocutory proceedings has been established in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115.  The Respondent submits that any failure to award costs to it would, of itself, amount to a serious injustice to it given the wasted time and expense arising.

8         Whilst acknowledging that the Respondent has been severely inconvenienced and has suffered expense at the hands of the Claimant the question nevertheless remains whether such expense and/or inconvenience amounts to injustice. Further there is an argument as to whether section 347 of the Workplace Relations Act 1996 would enable me to make an order as against the Claimant in any event despite what was said in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union (supra).  The Claimant appears to concede that in respect of this interlocutory application it would be permissible for this Court to make an order for costs if it were to find that the Claimant has been vexatious.

9         Although there can be no doubt that the Claimant has acted in a dilatory way with respect to this application, it does not necessarily follow that his actions have been vexatious.  There is nothing before the Court of an evidentiary nature that would enable this Court to conclude that the Claimant’s conduct in bringing the interlocutory application late has been vexatious.  That is particularly so given his sworn evidence that he attempted to make other arrangements so that he could be at the hearing.  It follows that the basis for concluding that the Claimant has been vexatious, enabling a costs order against him, does not exist.  A costs order cannot be made.  Given that costs are not recoverable that, of itself, may amount to injustice to the Respondent.  I say that because costs do not follow the event in this jurisdiction.  The usual situation in most other jurisdictions is that costs do follow the event.  Accordingly in such jurisdictions a party is able to recover costs thrown away where an adjournment is granted resulting from the conduct of the opposing party.  The award of cost is taken to be an ameliorating factor considered in a decision as to whether or not an adjournment should be granted.  In Tremeer v City of Stirling & Anor [2002] WASCA 281 the Full Court of the Supreme Court of Western Australia constituted by Wallwork, Steytler and Mc Lure JJ, said at paragraph 35:

“It was urged upon us that to allow an adjournment in a case such as this would result in case management principles being set at nought.  That is a contention which does not bear analysis.  There is a range of remedies (some of them drastic) available to any party faced with dilatoriness on the part of an opposing party.  Good case management ensures that those remedies, including the making of appropriate costs orders, are utilised in order to deal with conduct of that kind.”

10     It will be obvious that the availability of costs was an important consideration in that matter.  However the difficulty arising here is that costs will not be recoverable.  It follows therefore that the fact that the Respondent has incurred costs, which are not recoverable, must carry much greater weight than it ordinarily would in my consideration of whether or not the hearing should be adjourned.  Having said that, the decision in Tremeer v City of Stirling & Anor (supra), and others, makes it clear that the Courts will be reluctant to stop a party from presenting his, her or their case in a matter.  Ordinarily the Court will strive where possible to ensure that the matter is dealt with on its merits.  However on some occasions the Courts will, in weighing up the competing factors, have regard to case management principles that may override all other considerations.  There is a concern that valuable court resources not be wasted.  In the decision of the High Court of Australia in Sali v SPC Ltd & Anor [1993] 67 ALJR 841 their Honours Toohey and Gaudron JJ said at page 849:

“The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which the court may have regard.”

11     I may have regard to such consideration, and do.  The Magistrates’ Courts generally are very busy places.  I sit both in this Court and in the Court of Petty Sessions in Perth.  The Court of Petty Sessions in Perth is currently listed to December of 2005.  If you want a multiple day hearing you will get one in December 2005.  It is accordingly very important that the Courts utilise resources appropriately and that wastage of time is avoided.  The two days potentially lost in this matter could not be usefully utilized resulting in wasted resources.  I recognise however that case management is not an end in itself.  The decision of the High Court in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 per Dawson, Gaudron and McHugh JJ establishes that to be so.  Their Honours said at 154:

“Case management is not an end in itself.  It is an important and useful aid for ensuring the prompt and efficient disposal of litigation.  But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management should be allowed to supplant that aim.”

12     Their Honours went on to say at page 155:

“Justice is the paramount consideration in determining an application such as the one in question.  Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application.  Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration.  But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion.”

13     Their Honours Wallwork, Steytler and McLure JJ applied the aforementioned decision in Tremeer v City of Stirling & Anor (supra).

14     It will be obvious from the consideration of the authorities that Courts will strive where possible to ensure that matters are dealt with on their merits.  Dilatoriness on one occasion, of itself, would not necessarily result in the Court shutting out the offending party.  If I were to refuse the adjournment in this matter the Claimant would be shut out.  In my view, the authorities make it clear that the Claimant should not be shut out of these proceedings.  The Respondent, in not being able to recover costs thrown away is severely disadvantaged.  The disadvantage cannot be ameliorated.  The Workplace Relations Act 1996 precludes the making of a cost order in this instance.  That flows from the legislature’s policy decision as reflected in the Workplace Relations Act 1996.  The inability of the Respondent to ameliorate its disadvantage is indeed unfortunate.  It stems directly from the intent of the legislature.

15     The application for the adjournment will be granted for the reasons previously stated.  Additionally there is nothing to indicate that the Respondent will be materially affected other than by virtue of further delay and the expense that it has already incurred.  It is not suggested that witnesses will not be available on a future date.  The injustice done to the Respondent by it incurring costs, which are not recoverable, does not outweigh the injustice that would be done to the Claimant by a failure to grant the adjournment, and accordingly the adjournment must be granted.

16     I intend to take an active role in ensuring that the matter is appropriately relisted.   The matter must not be relisted by the clerk or by a consent order made by the parties. Rather the Court will relist the matter upon the application of either party supported by affidavit.   The Court intends to take a supervisory role in ensuring that the matter proceeds to hearing on the next occasion.  For that reason and also given that the Claimant has indicated that he will be reducing the amount of his claim it will be necessary to make further orders.

     G Cicchini

     Industrial Magistrate