Allerup v Heka Pty Ltd t/as Brisbane Dental Group [1999] QIRC 24 (1999) 160 QGIG 112

Industrial Registrar #################################################4f########################################################i##-###~:;##### QUEE.KSLAND l!\DUSTR[AL RELATIONS COMMISSIOK Workplace Relations J\ct 1997 s, 218(1) application for reinstatement Vibe Allerup AND Hek.a Pty Ltd t/as Brisbane Dental Group (No. B289 of 1998) CHIEF INDUSTRIAL C:OMMISSIOKER HALL 27 January 1999 f •, A t· "C ·d~red Application Declared to Ilave Lapsed, R · ('la1·111 .6.,1)1Jhcation I ,apsed- Meaning o · hny c 10n .onsi v Application for emstatement . . t DECISION \\'hen thi:-; rnatkr was li.:,tcd for call over. the respondent ohJected that 11 had lapsed, , , . . . ~ . ~ , . 98 Conunissioner Bo•• Ollie. whn c:onduct,:d the~- 219 cuuforencc, found t~ilt c,:'ncilia.tion had lt appear,: from the Conum,-s1,m hie that on 1.:i Mai eh l9. . . g 1 , 1.k. 1 , ad to a negotiated outcome, Die 11k note, which d l .k I b 'ful and that further conaha11on was a s<.1 un 1 e y w ie ~ d not he.en successful an was un I e Y to e succes,. . d h· fi d. , t .,, eh of the appli~ant and the respondent and, further, informe · B •· · d. ca:e·, that he commumcate t at , n mg o ~a ... . was signed by Comrruss1oner ougourc, m 1 •. ~ . ld l I ote that the apphcant took objection to reference bemg made the applicant that it no action was tak0n within six months, the apphcation ,won . apset., nl . f en ,p with a view to n~got1atino- a settlement of the J · l · h stal 1 ade to one another by tnc parties a sue 1 a con er c... ... • c . d to the: conciliation fik. .t 1s p a_m t at emen.s m h , t fa C :-mimissiorier of his finding that conciliation has faile u 1· • · ·ptes l do not see how t e announLemen o A • • , • matter are privile2:.ed, , 1ow-c•,vet, oil nn rnary piwci .. , btl h C · · , s power to d~part from tht: ordin,;1ry rules ol ~ · th fu f 11 · thin rhe snpe of the rule. Dou ess, t e orrumss10n ._, and is unlikely to he a success rn e ture a s WI . . ' . 11 th d ;ss1·011 of oth'rwi~e inadmi~sible evidence, However, I can see no th I f th w· •p admi~<1ble eVJdence as we as ea m," c , • . ~vidence may lead to e exc usion o o er 1:,,-. ·~ - , If d 1 . tl., door t:i the conference room sufficiently to ascertam • • 1 d th d to wt11ch 1 have refprred one oes no opvn 1... c . public policy reason tor exc.u mg e ev1 ence , . v • k d 1 ,,d th material to be admissible. ln the absence ot any , n , ired b , s 219(11 have been taken. s. 219(4) will have no wcr to o, con:s1 er e ~ ~~~:~ 1 ~;~~:;~,:~;~ 11 ,;ary\ find th;t the ~ix mouth period rc:d'crrrd to in.,. 219(4) commenced to rnn hom 1, March I 99lt · . , o • , ondent that the ex ression "any action·' had the same meaning as the noun ''proceeding" in lt was contended hy :½r Hickey, who appe,u-vd for the resp , . , h p .. o eeding taken with a view to continumg the ht1gat1on between t th S C rt Rul , Jf "proccedrng-' is g1 ven t e meamng a pr c - , h h' Order 90 Rule 9 o c upr..,mc ,ou e:'· . . . l.Jd I1984] 2 Qd R 152 at 153 per Master Lee QC• l am inchned t,l agree wit nn, the parties to 1r'. compare Lach v Intematwnal Portion F~oas Pty . . . v , C I [1966] Qd R 482 at 499, ie, that the word ''i., one th.1t i . " · · h, · · , wl'Jch Stahle J placed upon 1t 111 1\.aatJ • ,ae "-rs , . . , ,. How,wer, if ''pron:,~, mg is given I ,, meamn1o ' ~ h 1· . t. th p osecution of th" action being a step requued oy the rules . · · ·h f f· 1 st 0 n at least a st"p raken by t e 1t1gan lll e r , v • . suggests somethmg Ill t e nature o a orma -.-, · ' · , C . h .,.,,,, detailed than the Rules of the Industnal Court _,. · · Id 1· h. Tue Rules of the Supreme ourt are ver; muc n,v,v then I reject the subm1ss1011. o so or t 18 reason. R 1 f th S C urt are dealt with in a wholly informal way in the } {)1)7, :\fo11v ot the transactions required to be done in the formal way by the u CS O e-t~prc~eth OC ·mmis~io11 may make an order for discovery. In · · , · . I J · · · t' r f d S•'OVl"ry lt 1 S clear that lil an appwpna v ca.se e .u .. , Comrruss10n. Consider, tor examp e, t 1c ma ,e, 0 1• - , - ·, •1. . . . . .. 0 ., ·nv ·ry anl inspection of docum,:uts. In practic,·. the r,:spomknt s I. · 1· · · 11 ·t~totherespondent ~so1ntor.s1c'.t}Ul'.,s,111!-'. Le ,. 1 ., practice, the: app 1,:aut·, so KJtors Wh wn ,. · · · · . .- 1 d) d t •table for 'nspection If 1n a particular matter, , d d 1· ffid -·t f docum~ms and make 1non-pnv1 ege ocumen s avat 1 · , , , solicitor~ will r,-epare.an e iver an a aH o . " . d '. . . h d b en requeoted and had o~curred I would find it difficult to deny d • h ., 1"(4' mumcation d1scoverv an mspect10n a e ., ,, , , within a six month peno o, t e s. "- 7 ) corn ' ' . 1 h· d b ,~ tak~ lt •. p'rhaps useful to note that under the Supreme Court h d k ., f " th U"h no st 'P rcqmrcd bv the ro CS a u,n vfi, IS " 9 that !he apphcam a ta en ac wn ' o ."'. . . c, d h~ d. to d the ,focuments are both proceeding.s fof the purposes of Ord.::r 90 Rule . Rule~. the giving of the notice callrng for d1scov,,q, an t ,, pro uc 1 n ·' '"'' · · d , d 16 lv1 •I '998 ('e threp day, after the conference) which 111c applicant's difficulty here was all thiit he could rely upon was the dispatch of .i letter a,e . arc l l I., v • was in the tollowing tcrms:- c f . . F 'd th , 3lll of March 1998 and note that you contend that there <1re s,:veral bases l!JXlll which )'0\1 ,,ubnut that um "I reier to the con e1e.nce on n ay e , · , client does not have a claim against your client · 1· ' , d and ·rt1· ·,u'ar·· of each of those <>rounds, We require you set forth exhaustively all o tnose grou,1 s P4 c; 1 ~ 0 Further, we require your client to make d;scovery all of (sic) relevant documents. We particularly wish to inspect the employment records including those records which .~how the employment of the spouses of members of the Brisbane dental practice, We look forward to rcc-0 iving this infonnation and documents within the next sescn days.", 1. d t,; 0 attemiit was made hi follow up the re(1uest.< made iu the lettcr, ~ot one of tho.-;e rct1ucsh was grank.d. lnclcc~d, tlw kller wa.s not rep ie to. 12 February, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 113 Section 219 (4) was an innovation wrought by the Workplace Relations ,1ct 1997. It was plainly intended to establish a more rigorous regime than that which applied to proceedings generally in consequence of the provisions of the Rules of the Industrial Court, which at all rclevant times required leave to proceed 1f no action was taken for twelve months. It would deny the subsection any practise if the mere dispatch of a letter such as that, unaccompanied by any attempt to follow it up. eg by asking for an order thai the respondent file a response and grant discovery, was thought to neutralises, 219 (4). 1he applicant then contended that a discretion w restore the lapsed application might be distilled from the general powers of the Commission. Doubtless some reference has to be made to the general powers of the Commission in dealing with unlawful/unfair dismissal cases, eg to deal with applications to amend. But resort cannot he had to those powers to override a clear substantive provision at Chapter 5 Part 2, The- comparison betweens, 219 and the immediately preceding sections, 218 is stark. The former section confers a discretion to 0xtend time. Section 219 does not confer a discretion to waive the orrussion to take "action", In the circumstances I declare that the application has lapsed. Dated this twenty-seventh day of January, 1999, D.R. HALL, Chieflndustrial Commi!'sioner. Appeara:ru:es:- • Mr T. Puryer (of Puryer and Co. Solicitors) for the applicant. Released: 27 January 1999 • Mr W. Hickey (of Macrossans Lawyers) for therespondenL -- 1 of 1 --