Gu v Nature's Care Manufacture Pty Ltd

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Zammit and KTS Logistics Pty Ltd [2006] NSWIRComm 36

HEARING DATES: 13/02/2006 EXTEMPORE JUDGMENT DATE: 02/13/2006

APPLICANT Solicitor: Mr S Chen Ren Zhou Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr M Helm Steve Walker & Associates

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Yao Qin Gu re unfair dismissal pursuant to s 84 of the Industrial Relations Act 1996

1. This matter is listed for hearing before Commissioner Cambridge on 15 February 2006.

2. On 9 February 2006, the solicitors for Nature's Care Manufacture Pty Ltd ("the respondent") forwarded a letter by facsimile to the Industrial Registrar seeking an adjournment of the hearing and that new directions be issued.

3. The basis for the adjournment was stated as follows: …one of the respondent's major witnesses, left the respondent company at the end of last year and she has since obtained new employment requiring travel. Consequently, we have had substantial difficulty contacting Ms Sadni about her evidence. We now anticipate that this will be filed and served by early next week. We are also informed that Ms Sadni will be overseas on business next week and that she will therefore be unable to attend the hearing on 15 February 2006 if required. We also anticipate that three or four witnesses may be required to attend at the hearing and that therefore one day may not be sufficient time to hear the matter.
4. Mr S Chen, who appeared for the applicant opposed the application for an adjournment.

5. In accordance with Practice Direction 17 of the Industrial Relations Commission of New South Wales, this application has been remitted by the Registrar to a Presidential Member.

6. The history of this matter is that on 20 October 2005, the applicant filed an application pursuant to s 84 of the Industrial Relations Act 1996, seeking relief from unfair dismissal.

7. An undated reply to the application is contained on the file.

8. On 14 November 2005, Commissioner Ritchie chaired a conciliation of the parties. The conciliation was unsuccessful and the following directions were made: 1. The applicant to file and serve any witness statements on or before 5 December 2005.

2. The respondent to file and serve any witness statements on or before 29 December 2005.

3. The applicant to file and serve any witness statements in reply on or before 12 January 2006.
4. The applicant complied with the direction. However, the respondent did not file its evidence until 9 February 2006.

10. Paragraph 13(b) of Practice Direction 17, which came into force on 9 January 2006, provides as follows: 13. (b) The day (or days) in which the application will be dealt with by arbitration is definite. Any applications for adjournment of arbitration dates must be made in a timely way, be in writing and contain full grounds. Such applications will be considered and determined by a Presidential Member. It should be understood that adjournment applications will be granted only on clear and compelling grounds.
11. In support of the application, Mr M Helm, who appeared for the respondent, relied on an affidavit of Patricia Dawn Sadni sworn 10 February 2006. Ms Sadni deposed that she will be overseas from 12 February 2006 to 20 February 2006 and sought to be excused from attending the hearing on 15 February 2006.

Mr Helm submitted that the reasons for the default in complying with the directions and the basis for the application for an adjournment of the hearing was that Ms Sadni, the respondent's former operations manager and the principal person who provided instructions, had left the employ of the respondent; the Christmas, New Year close down of the respondent's solicitors and the respondent itself prevented evidence being finalised; that the matter was complex; the respondent believed the filing of its evidence would not be excessively late; logistically it is an effort for the respondent whose offices are in Belrose to attend the respondent's solicitor's offices in Surry Hills and that English is not the first language of the respondent.

Practice Direction 17 is designed to facilitate the just, quick and cost effective disposal of unfair dismissal proceedings before the Commission. Absent clear and compelling grounds, applications for adjournments will be declined.

I am of the firm view that the respondent has not acted in a way commensurate with its obligations and its own interests in seeking an adjournment of the proceedings in such close proximity to the hearing. Ms Sadni left the employ of the respondent on 20 January 2006, contrary to what was initially put forward by the respondent.

It was incumbent upon the respondent, if it was having difficulty complying with the Commission's directions, to take steps prior to the departure of Ms Sadni. By the date of Ms Sadni's departure from the respondent, it was already in default of the Commission's directions. It did not file any material in its case until 9 February 2006.

In my view, the respondent has not demonstrated clear and compelling grounds for an adjournment. The reasons advanced, in my view, fall well short of grounds which would warrant an adjournment.

The application for an adjournment of the proceedings is refused.

Turning to the application to amend the timetable, Mr Helm sought that the directions be varied to enable the respondent to file and serve any further material upon which it relied by 4.00 pm on 17 February 2006. Mr Helm informed me that Ms Sadni's affidavit had been filed on 10 February 2006. Mr Helm sought to file a short affidavit of Mr Wu, the Managing Director of the respondent, responding to matters contained in the applicant's affidavit which was filed and served on 5 December 2005.

In respect of this application, I am mindful that Practice Direction 17 is relatively new. The Practice Direction makes it clear that in order for directions to be varied, a party must have a compelling reason. If such applications are made in an untimely manner and particularly after the time for compliance has passed, such factors will tell against the varying of directions. It should not be assumed that the mere fact that a party now has evidence available to be filed and served after a direction has been breached will result in the evidence being admitted. A balancing of the interests of justice will need to occur. This will include assessing, for example, whether the other side has enough time to properly deal with such evidence.

On balance, and particularly as Practice Direction 17 has recently come into force, I am prepared to vary the timetable to enable the respondent to file the witness statement of Mr Wu. I make an order that the respondent file and serve the witness statement of Mr Wu on or before 4.00 pm today. Any material that the applicant wishes to rely upon in reply should be filed and served on or before 4.00 pm on 14 February 2006. In accordance with paragraph 10 of Practice Direction 17, any witness statement is to be signed by the witness and typed with numbered paragraphs and pages.

Paragraph 10(vi) of Practice Direction 17 provides that leave of the Commission is required to rely on written statements and other documentation filed and served later than the time specified by the Commission in its directions. As the respondent is in default of the directions made for the filing and serving of all witness statements, I grant leave for the respondent to rely on the witness statements filed on 9 and 10 February 2006. I waive the requirement contained in paragraph 11 of Practice Direction 17 for the applicant to provide seven days notice to the respondent if she wishes to cross-examine the respondent's witnesses. The applicant shall advise the respondent on or before 12.00 noon on Tuesday 14 February 2006 if she requires the respondent's witnesses for cross-examination.

The Commission recently considered Practice Direction 17 in Zammit and KTS Logistics Pty Ltd [2006] NSWIRComm 36. In that matter, the respondent sought to strike out unfair dismissal proceedings because of the applicant's failure to comply with directions. At [21], the Commission as presently constituted, observed: This decision will act as a clear publication of the significant terms of the case management system the Commission has introduced in respect of unfair dismissals and it will, within the limits of justice, be strictly applied. 23. The application for an adjournment of the hearing listed for 15 February 2006 is refused. The directions made in this matter are varied as set out earlier in this decision.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.