Boyd v CWA Holdings Pty Ltd and/or Bundalake Pty Ltd t/a Café Columbus; Boyd v CWA Holdings Pty Ltd and/or Bundalake Pty Ltd t/a Café Columbus [2001] QIRC 24 (2001) 166 QGIG 285

16 March, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 285 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s.74 – application for reinstatement Greg Boyd AND CWA Holdings Pty Ltd and/or Bundalake Pty Ltd t/a Café Columbus (No. B971 of 2000) Robyne Boyd AND CWA Holdings Pty Ltd and/or Bundalake Pty Ltd t/a Café Columbus (No. B972 of 2000) COMMISSIONER BLADES 7 March 2001 REPORT ON DECISIONS (as edited) In giving his decision from the Bench on 15 February 2001, Commissioner Blades said:– “This is an application for leave pursuant to s. 319 of the Industrial Relations Act 1999 (the Act) for the respondent to be legally represented in these unfair dismissal applications at the hearing set for 26 and 27 February next. The applicants object to legal representation. They were aware of this hearing and have chosen not to appear. The Act provides for legal representation to be permitted in special circumstances making it desirable for the party to be legally represented, as per s. 319(2)(b)(iii). The Act, in subsection (4), also sets out some matters which can be considered in determining whether there are special circumstances. In these cases, there are two applicants, husband and wife, who were simultaneously dismissed as joint managers of a business. Whilst it would appear that both applicants have since obtained employment, Mrs Boyd alleges that lost income for her to 12 January 2001 is approximately $10,000. I have obtained this information from reading the statements that have been lodged in the Commission. Mr Boyd’s new employment would appear to be at a considerably lesser rate than when employed by the respondent. Therefore, a significant sum of money would seem to be at issue. That aspect is taken into account. It is one of the matters identified in subsection (4). Furthermore, there would appear to be real issues regarding mitigation of damages as the material alleges that the respondent secured alternative employment for the applicants, thus legal issues involving mitigation principles would also seem to be relevant. There is an allegation that the employer purported to sell the management rights of the business resulting in the applicants’ termination. Legal issues as to whether that was possible will arise. There are other questions of law identified by and alluded to by the respondent’s counsel in the submissions made this morning. There is no doubt that cross-examination of witnesses will be substantial. Lawyers are trained in the art of cross-examination, if only by experience, and their knowledge of the laws of relevancy more often than not serves to reduce the length of hearings, thus ensuring that costs will be contained. Taking into account all of these circumstances, it is my view that there are special circumstances making it desirable for the respondent to be legally represented, that I give leave and order accordingly. I reserve for further consideration, if necessary, the question of costs.”. In giving his decision from the Bench on 23 February 2001, Commissioner Blades said:– “This is an application on behalf of Mr Royce for the applicants for an adjournment of this claim, listed for hearing at Southport on Monday 26 and Tuesday 27 February. The reasons for the application are inconsistent. My associate was told late yesterday afternoon, i.e. 22 February, that the applicants could not get time off work. That is confirmed in the letter from Mr Royce to the Industrial Registrar, dated 22 February. Today the application is based on the unavailability of some documents, not further identified. The parties were notified of the trial date on 31 January last, when a preliminary hearing regarding legal representation, objected to by the applicants, was set down for 15 February. While Mr Royce failed to appear at the hearing on 15 February he was certainly aware it was on and the applicants cannot claim that they have had insufficient warning. What concerns me is that this hearing had been abandoned on a previous date, namely 1 and 2 February because of the laches of the respondents in failing to supply statements of witnesses and other documents to the applicants. That conduct is inexcusable. It is noted that at a preliminary hearing called on by Commissioner Swan on 30 January that Mr Royce claimed that it was a ploy. He then sought that the hearing should go ahead on those dates. It seems to me, that on this occasion, this adjournment is being sought also as a ploy, as a ‘tit for tat’ exercise to penalise the respondents for their previous actions. Whilst I deliver criticism in the strongest possible terms upon the respondents for the difficulty they have caused in regard to the initial hearing, that is absolutely no excuse for the conduct engaged in, in regards to this application for adjournment. The applicants have had numerous reminders and opportunities to seek time off work to attend the hearing. Mr Royce has not seen fit to advise Ms Prior of even the general nature of the documents he seeks, or in whose possession they are. The inconsistency of the reasons advanced for the adjournment render the application spurious. This Commission has booked a Court Room at Southport (the booking of the Court Room has no doubt displaced other persons wishing to use that Court Room), Court Recorders have made arrangements to be in attendance, motel accommodation has been booked, people have been put to costs, the respondent has been put to costs in preparing for the hearing, witnesses have made arrangements on the basis that the hearing would be proceeding on Monday and Tuesday. The Commission, at this stage, is unable to list alternative matters to occupy it on Monday and Tuesday resulting in further economic waste. It is in the public interest that parties allocated dates of hearings should expect to proceed to hearing on those dates and should not be inconvenienced by cancellations and non-appearances unless the case has been finalised by settlement. The reason advanced, whichever is the correct one, if either, in these circumstances does not justify an adjournment at this late stage, i.e. Friday afternoon before the Monday hearing. The applicant can subpoena any third party to secure the production of documents. -- 1 of 2 -- 286 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 16 March, 2001 The letter addressed to the Commission did not, in fact, even seek an adjournment. It advised the Commission that the applicants were unable to attend the hearing, requested a new hearing date be set and advised that Mr Royce would be available to discuss the next date for the conduct of the matter. The letter concluded, and I quote, ‘I await instructions on the rescheduling of this matter’. It suggests that the hearing would be adjourned just because it was requested. That is an impertinent and cavalier attitude towards the business of the Commission and the granting of adjournments. It will not be tolerated. Adjournments of matters set down for trial are the business of the Commission and not the parties and even if by consent, may be viewed with some disdain, especially at a very late stage. The adjournment will not be granted, the matter will proceed to trial on the dates allocated. If the applicants fail to appear, the case will either proceed in their absence or be struck out.”. In giving his decision from the Bench on 26 February 2001, regarding an application for costs sought on 15 February 2001, Commissioner Blades said:– “The application is made by the respondents under the provisions of s. 335 of the Act and in response to a decision reserving the question of costs on the application which was heard in Brisbane on 15 February 2001, where the respondent sought the exercise of discretion under s. 331 to be permitted legal representation. There was a previous indication given that the applicants opposed legal representation. The costs application was based on the fact that legal representation is now automatic and should not have been opposed. Let me say that whatever the decisions say in relation to legal representation, that it always remains in the discretion of the Commission and whilst some people might like to regard it as being automatic that legal representation will be granted, I do not think we can go quite that far. It always remains a question of discretion depending on the circumstances of each case. The applicant was entitled to oppose legal representation. Further to that, what concerns me is the respondent’s conduct in this whole matter. Mr Royce complained before Commissioner Swan on transcript on 30 January about the fact that no documents had been provided to him, no witness statements had been provided and that was in breach of the Directions Order issued initially. At the hearing on 30 January before Commissioner Swan was the question of legal representation. The respondent was represented by a Mr Connors who had a last minute brief and who had not been graced with extensive instructions. He appeared on that date to inform the tribunal that the respondents had sacked their firm of solicitors. So there was no further need for a legal representation hearing and the hearing before Commissioner Swan was wasted and Mr Royce’s time and his clients’ money was wasted. I think that it is appropriate for me to take that into consideration. The applicant has also been put to costs. Whether those costs can be recovered is really not the point, but if the respondent wants the Commission to be sympathetic to the respondent’s position, then as the old Latin maxim has it – ‘… he must come with clean hands’. For those brief reasons, I do not think that this is an appropriate matter for an award of costs and the application is dismissed.”. By the Commission, [L.S.] E. EWALD, Industrial Registrar. Released: 7 March 2001 Appearances:– Ms K. Prior of Prior and Associates acting as town agents for the Applicants on 23 February 2001. Mr S. Royce, Australian Industrial Reinstatement Services, for the Applicants. Mr J. Merrell, instructed by Hopgood Ganim Lawyers, for the Respondent. -- 2 of 2 --