Aon Risk Services Australia Limited v Australian National University

CASES CITED: Anley and Department of Education and Training [2009] NSWIRComm 39 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

HEARING DATES: 28 October 2009 EXTEMPORE JUDGMENT DATE: 29 October 2009

Ms P Lowson of counsel (Applicant) W G McNally Jones Staff, Lawyers LEGAL REPRESENTATIVES: Ms J Patterson (Respondent) Minter Ellison, Lawyers

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES (ON BEHALF OF ROSANNA GANINO) AND ROAD AND TRAFFIC AUTHORITY OF NSW DIVISION OF NSW GOVERNMENT SERVICE

Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of its member Rosanna Ganino re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This matter was referred to me by the Industrial Registrar pursuant to Practice Direction 17 to consider an application made on 27 October 2009 by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of its member Rosanna Ganino) ("the applicant") for an adjournment of the dates fixed for the hearing of this matter, being 2, 3 and 4 November 2009. 2 The grounds for the adjournment, as set out in the letter to the Industrial Registrar included that: (i) the respondent served on the solicitors for the applicant five witness statements without annexures by email at 6.20 pm on 15 October 2009 with "hard copies" being served on 16 October 2009; (ii) on 20 October 2009, the respondent filed an additional statement of Mr O'Meally. (I am told that the respondent's evidence exceeds five lever arch folders and includes evidence of which the applicant was previously unaware); (iii) logistical problems of photocopying such voluminous material resulted in the applicant only receiving the majority of the material on 20 October 2009 and Mr O'Meally's statement on 23 October 2009; 3 Ms P Lowson of counsel, who appeared for the applicant, submitted that this has not given the applicant enough time to prepare her material in reply and that it would prejudice her case if it were to proceed on 2 November 2009. 4 In addition, difficulties have arisen in respect of subpoenaed documents which are the subject of confidentiality undertakings and can only be viewed by the applicant in her solicitor's office. The applicant has carer responsibilities which have impacted on her ability to inspect the documents. It is further contended by the applicant, that the respondent has not produced all documents, however, a final decision in this regard cannot be made until the applicant has considered all of the documents. Now that the applicant has the respondent's case, it says there are additional documents it requires and that documents are missing. 5 The applicant also filed a notice of motion which was heard yesterday. This hearing, which apparently proceeded for much of the day, impacted upon the legal representatives' preparation time for the substantive hearing. 6 Ms Lowson, who had not been briefed when the matter was originally fixed for hearing, submitted that seven days would be required for the completion of the hearing. Counsel foreshadowed that a number of the respondent's witnesses (six in total) would be required for lengthy cross-examination and because of the complexity of the application, Ms Lowson also submitted that her opening may take up to half a day. In counsel's view, the matter could not be concluded in the time set for the hearing. It followed, so counsel submitted, that the matter would be part heard and would need to be adjourned for completion.

7 Ms J Patterson, solicitor, who appeared for the Roads and Traffic Authority of New South Wales ("the respondent"), submitted that the respondent was ready to proceed and that no good reason had been advanced for an adjournment. Ms Patterson accepted that the fact finding report of Mr Madden had not been produced until 16 October 2009, but submitted that much of the subpoenaed material was produced in September. The respondent disputed that the applicant was not aware of the case against her until she received the respondent's case and that, in any event, the applicant would have had the respondent's evidence for at least two weeks prior to the hearing. Ms Patterson submitted that the respondent would be prejudiced for the following reasons: (i) it had only become aware that the applicant was proposing a new timetable for filing material in reply yesterday;

(ii) counsel briefed by the respondent is not available for the balance of the year, and until April next year. If the adjournment was granted it would result in a delay of some months;

(iii) there are compelling considerations to proceed with the hearing because the applicant is seeking reinstatement;

(iv) a number of the respondent's witnesses are no longer employed by it and work in private industry. Arrangements have been made for them to give evidence next week;

(v) if the adjournment is granted, the respondent is concerned that if the applicant is successful, it may be required to pay a significant amount of back pay to the applicant. Ms Patterson observed this could be remedied if the applicant was prepared not to press any application for back pay, however, the applicant was not prepared to agree to this; (vi) if the respondent was required to brief alternate counsel, significant costs would be thrown away. Consideration 8 Practice Direction 17 is designed to facilitate the just, quick and cost effective disposal of unfair dismissal proceedings before the Commission. Clause 13 of the Practice Direction which deals with adjournments, provides that the day(s) on which the application will be dealt with by arbitration are definite and that it should be understood that adjournment applications will be granted only on clear and compelling grounds. 9 There are interests other than the interests of the parties to be considered. The workability and the practise in respect of unfair dismissal applications are considerations of importance in this application. 10 Practice Direction 17 reflects the legislative purpose implicit in s 84 of the Act. The proper administration of justice is to ensure this occurs. 11 The Commission has observed in numerous cases that Practice Direction 17 will be strictly applied. See for example Anley and Department of Education and Training [2009] NSWIRComm 39 and in particular the cases referred to at [23]. 12 In determining this application, the objectives of a "just, quick and cost effective" requirement found in Practice Direction 17 must be determined in light of the explanation relied upon by the applicant who is seeking an indulgence from the Commission. 13 Recently, the High Court (French CJ agreeing in a separate judgment; Gummow, Hayne, Crennan, Kiefel and Bell JJ in a joint judgment, Heydon J agreeing in a separate judgment), in considering a similar phrase to that referred to in Practice Direction 17, albeit, in respect of an application to amend, observed in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [98] - [103] that the "just, quick and cheap requirement (as found in r 21 of the ACT Rules) should not detract from a proper opportunity being given to the parties to plead their case." 14 The applicant says that she will be prejudiced if this matter proceeds on the days fixed for hearing. She relies on the matters I have already set out. It is also contended that seven days will now be required for the hearing and not three days, as originally fixed. If the application is rejected, it would appear to be highly likely that it therefore will not conclude in the time allocated for the hearing and an adjournment will inevitably follow. 15 I raised with Ms Patterson that the various matters relied upon by the respondent would have greater weight if it was not contended that more than double the original time fixed for the hearing will now be required to complete the matter. 16 Ms Lowson's assessment of the time required for the hearing would result in the matter being part heard and delay occurring in any event. I was originally advised that Ms Eastman, counsel for the respondent, was not available for the balance of this year and up to April next year. The practical effect of this, if the application failed, would be that the matter would most likely be adjourned until April 2010. 17 As the hearing of the application concluded at 5.00 pm, I advised the parties that, although I had intended to deliver an ex tempore decision, taking into account, in particular, the convenience of the court reporter, I would deliver my decision at 9.45 am today. I directed the parties to further discuss the application for the adjournment. 18 A facsimile was forwarded to my associate from the solicitors for the respondent at 7.50 pm last night. They advised that, having had a further opportunity to confer with counsel as to her availability, Ms Eastman was available on 5 November 2009 and would return from leave for a further hearing on 22, 23 and 24 December 2009. It was proposed that the matter proceed next week and a programme for calling witnesses was set out. 19 On 29 October 2009, a letter was received by my associate from the solicitors for the applicant. They advised that the applicant would accept the matter being adjourned to April 2010, subject to: (i) the respondent confirming that no adverse inference would be drawn from Ms Ganino's acceptance of the adjournment to April 2010 in respect of her reinstatement application; (ii) the parties reserve their rights generally to make submissions about the payment of back pay during the period of the adjournment. 20 In my view, the proposal set out in the letter of 28 October 2009 from the respondent's solicitors does not address the fundamental basis of the applicant's application, which is that, for the reasons set out earlier in this decision, the applicant is not in a position to commence the hearing of this matter on 2 November 2009. 21 I also take into account that the application was filed on 4 August 2009 and the only direction that the applicant has not complied with, was the filing of material in reply. 22 In determining matters such as this, I am mindful that the administration of justice needs to be properly served. On balance, taking into account all of the matters set out in this decision, and endeavouring to balance the overall interests of justice between the parties, I am of the view that the application should be granted. 23 I make the following orders: 1. The hearing dates fixed for this matter, being 2, 3 and 4 November 2009 are vacated. 2. The matter is to be fixed for hearing for seven days after 23 November 2009, subject to the availability of counsel for the applicant and counsel for the respondent. 3. The applicant is to file any material that it wishes to rely upon in reply on or before 4.00 pm on 16 November 2009. 4. This matter is to be the subject of a compliance callover at 9.30 am on 17 November 2009. 5. The parties are directed to attend upon the Industrial Registrar at the conclusion of these proceedings and obtain new dates for the hearing of this matter.

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