Boral Resources (Qld) Pty Ltd v MJ & GM Quaedulieg; Boral Resources (Qld) Pty Ltd v K & S Tunny Pty Ltd; Boral Resources (Qld) Pty Ltd v Larmel Transport Pty Ltd [2005] QIRC 127 (2005) 180 QGIG 224

[Extract from Queensland Government Industrial Gazette, dated 23 September, 2005, Vol 180, No.4, pages 224-226] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations (Tribunals) Rules 2000 – r. 201 – striking out proceeding after at least 1 year’s delay Boral Resources (Qld) Pty Ltd AND MJ & GM Quaedulieg (No. B1075 of 2005); Boral Resources (Qld) Pty Ltd AND K & S Tunny Pty Ltd (No. B1076 of 2005); Boral Resources (Qld) Pty Ltd AND Larmel Transport Pty Ltd (No. B1077 of 2005) DEPUTY PRESIDENT SWAN 9 September 2005 DECISION This application is made by Boral Resources (Qld) Pty Ltd (Boral) to strike out application numbers B642/01, B643/01 and B636/01. Boral relies upon r. 201 of the Industrial Relations (Tribunals) Rules 2000 – “striking out proceeding after at least 1 year’s delay” (the Rules), to support its application. Boral was the respondent in the abovementioned matters. All three matters related to applications to amend or void a contract pursuant to s. 276 of the Industrial Relations Act 1999 (the Act). The matters were set down for a preliminary hearing before the Commission in order to fully canvass the relevant provisions of the Rules. Both parties said that they did not require a preliminary hearing and that they wished the Commission to hear and determine the applications straight away. Given that both parties were legally qualified and were familiar with the Legislation, I agreed to adopt that course. In any event, the Commission heard the representative for the remaining applicants in B642/01, B643/01 and B636/01 as to reasons why the applications had not proceeded. This then obviated the need for the technical steps which may have been initiated by the Registrar of the Commission pursuant to r. 201. Mr Lepahe, for Boral, outlined the history surrounding these matters. Mr Lepahe has had carriage of these and related proceedings against Boral for some five and a-half years. The history is as follows: • In 2001 Boral reduced the size of its truck fleet by between 25-30 percent. Packages were offered to the drivers, and ten drivers rejected the offers. • Those drivers initiated unfair contract applications before the Commission. • All but the abovementioned three applications were resolved. • Prior to one of the matters going to trial (Peter Brinkman and Kerry Brinkman t/a The Brinkman Business Trust AND B R Tiles Pty Ltd AND Boral Resources (Qld) Pty Ltd (No. B641 of 2001), renewed offers had been made to the various drivers. • After that decision issued, there was a request by the solicitors acting for the three remaining applicants to Boral to have further discussion around resolving the matters. • Consequently, a Commission conference was held on 24 March 2004, however a resolution to the disputes was not achieved. • Boral was still prepared to discuss the issues with the applicants’ solicitors and on 31 March 2004, on the date of the Directions Hearing before the Commission, the applicants’ solicitors sought, for those purposes, an adjournment which was granted. • Since that date, there has been no formal contact from the applicants’ solicitors save that there was some issue between those solicitors and their clients over the question of payment of fees. • Some eighteen months has elapsed since any communication occurred between the parties. • Boral would be prejudiced by these proceedings continuing, having paid for legal assistance for more than five years and then preparing for renewed litigation. • The delay in the progression of these applications has been caused by the original applicants. -- 1 of 3 -- QIRC05-127.rtf • Boral now asks the Commission to dismiss these applications. The solicitors which were representing the three applicants have since ceased that representation and the applicants were directly represented at this hearing by Mr Supranowicz of Counsel. Mr Supranowicz’s submissions were as follows: • After Brinkman’s case, Boral had made offers to the applicants but they were viewed as unrealistic offers. • The applicants had been provided, by their original solicitors, with projected fees for the pursual of their litigation against Boral. • Those applicants had sought other legal representation. • Two of the applicants are now retired from the workforce and the other applicant has been continually ill since the time of the termination of his contract with Boral. • The applicants believe that the decision in Brinkman should be used as a precedent to finalise the issues between themselves and Boral. • A further complicating factor for the applicants was that, when they decided to change their legal representation, they were unable to retrieve their files and, only during the course of this year has Mr Supranowicz been able to access that information. • In the interim, Mr Supranowicz has engaged the services of a forensic accountant in order to correctly record what would constitute a fair and reasonable figure for goodwill. • Were this matter to proceed to trial, the Commission would be able to rely upon much of the material presented in Brinkman’s case by Boral. • Part of the delay was caused by the applicants’ previous solicitors not notifying the Registry of the Commission as to Mr Supranowicz’s representation. • It may not be necessary for the matters to proceed to trial once the information from the accountant was received. There was a belief that the matter could be resolved rather easily. Against the proposition by the respondents that the matter could easily be resolved, Mr Lepahe stated: “When you’re talking about goodwill the drivers value goodwill in their own way. The drivers enter into a transaction with a third party to purchase or sell a vehicle and Boral isn’t part of that negotiation or that transaction, so the valuation issue is one between two individuals, the driver and a third party, and they can assign goodwill at their – at their whim in whatever way they wish. Boral is not there. So the only way Boral can actually deal with that issue is to forensically examine that transaction.”. Rule 201 of the Rules states: “Rule 201 striking out proceeding after at least 1 year’s delay states: (1) This rule applies if – (a) an application has been filed in the registry; and (b) no action has been taken for at least 1 year since the last action was taken in the application.”. Pursuant to r. 201(2) and (3) no formal application has been made by any party to progress further with the matter. I have determined that the applications should be struck out. These matters have been on foot for an extremely long period of time and it is clear that no further action has been taken by the applicants to progress their claim for more than a year. Boral has been put to considerable expense in defending its position. -- 2 of 3 -- QIRC05-127.rtf There is no sustainable reason put to the Commission as to why these applications have not progressed within an appropriate time frame. The fact that Boral does not accede to the demands of the applicants is not an excuse for prolonging this process. Even when requesting the indulgence of Boral to attempt to finalise the matters in dispute, the applicants are still asking for more time to provide additional information. Clearly, the applicants are not ready, even as of this date, to proceed to trial. The decision in Brinkman was released in October 2003. Whilst that decision may have provided useful guidelines for the applicants to have followed, a submission has been made by Boral to the effect that one could not simply extrapolate the outcome from that case and transpose it onto these three applications. Different facts would emerge in these applications and different considerations would have to be made. The Commission accepts the thrust of those submissions. This is not a case of one party failing to comply with directions of the Commission (see Wilcox and Gummow JJ in a decision of the Full Court of the Federal Court in Lenijamar Pty Ltd v AGC Ltd (1990) 27 FCR 388), but a case of one party simply not doing what is necessary to progress the applications to trial, when all attempts to conciliate the disputes have failed. In Sullivan v Department of Transport (1978) 20 ALR 323, Dean J at 343 stated: “… it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.”. Pursuant to r. 201 of the Rules, I determine that the applications should be struck out. Order accordingly. D.A. SWAN, Deputy President. Appearances: Hearing Details: 2005 23 August Released: 9 September 2005 Mr H. Lepahe of Murdoch Lawyers for Boral Resources (Qld) Pty Ltd. Mr V. Supranowicz of counsel for MJ & GM Quaedulieg, K& S Tunny Pty Ltd and Larmel Transport Pty Ltd. Government Printer, Queensland The State of Queensland 2005. -- 3 of 3 --