Kenneth Little Thoroughbred Services Pty Limited v Davies

REASONS FOR EX TEMPORE JUDGMENT WILCOX J: 1 This is an appeal pursuant to s 422 of the Workplace Relations Act 1996 (Cth) from a decision of the Chief Industrial Magistrate ('the Magistrate') sitting in the Chief Industrial Magistrate's Court of New South Wales ('the Industrial Magistrate's Court'). The appeal comes to this Court because the claims that were being dealt with by the Magistrate were claims for short payments of wages said to be payable under a Federal award. 2 Two points have been argued by Mr Moses, counsel for the appellant, the second of them by leave granted by me at the start of the hearing today. Both points are singularly lacking in merit. 3 The first point argued is that the Magistrate erred in law in exercising his discretion to refuse an application by the appellant for an adjournment of the hearing on 27 August 2003. There appears to be no dispute about the factual background to this point. 4 The five applicants in the Industrial Magistrate's Court filed applications on 1 May 2003. The applications were served on the respondent to the proceedings in the Industrial Magistrate's Court, that is to say the appellant before me, on 9 May 2003. On 11 June 2003, the matters were listed for mention in the Industrial Magistrate's Court. Paul Douglas Auberson, a Senior Compliance Officer employed by the Federal Department of Employment and Workplace Relations, appeared on behalf of the applicants on that day. There was no appearance on behalf of the respondent, the former employer. Apparently Mr Auberson told the Registrar at the mention that there had been an exchange of statements on 9 July 2003. 5 The Clerk of the Local Court advised the respondent of the hearing date, which had been fixed for 27 August 2003. A notice to that effect was sent by the Industrial Magistrate's Court on 8 July 2003. On 27 August 2003, the matter was listed before the Magistrate. Mr Moses asked leave to mention the case early in the calling of the list. Mr Moses informed the Magistrate that he relied upon an affidavit made by his instructing solicitor, Samuel John Pearlman. The affidavit had been sworn on the previous day, 26 August 2003. It revealed that Mr Pearlman had taken over the carriage of the matter only on 23 August 2003, upon the departure on leave of the partner, Richard Ottley, who had been dealing with it. Mr Pearlman was therefore relying on information and belief about the history of the matter, his information having been gained from perusal of the firm's file and a telephone discussion with a named person who was the sole director of the client company. 6 On the basis of his information and belief, Mr Pearlman said there had been discussions with Mr Auberson, apparently conducted by Mr Ottley. These occurred between 12 August 2003 and 18 August 2003. 7 The discussions were with a view to resolving the applicants' claims, but no agreement was reached. I have no information as to the content of the discussions. It was stated by Mr Pearlman that '[f]or financial reasons pertaining to the respondent, our instructions to act to date have been limited in this manner'. This is apparently a reference to acting only for the purpose of discussions with Mr Auberson. 8 Mr Pearlman went on to say that his firm had received instructions to act in defence of the claims only that day. On the basis of this information, Mr Moses sought an adjournment. He indicated readiness to submit to an order for payment of any costs thrown away by the adjournment. The Magistrate sought an indication of position from Mr Archer, who was appearing for the applicants. Mr Archer opposed the adjournment. During the course of his address to the Court, Mr Archer indicated that he had been instructed in the matter some three weeks earlier and that the five applicants had taken time off work that day in order to attend court. They were present and prepared to give evidence. Mr Auberson was also present and prepared to give evidence. 9 Mr Archer said that '[a]ll the documentary matters have been, as far as we are concerned, prepared and ready for the matter to proceed today'. The Magistrate invited Mr Moses to comment on what had been said and he did so. The Magistrate then gave short reasons for refusing the adjournment. In the course of doing so, he noted the history of the case. He then said: 'Application is made today on the hearing date for the matters to adjourn, which is very late. The Court is very much mindful of the interests of the parties but also too of the fact that the Court administration nowadays is a very important factor and the matter has been set down for hearing today. The matter will proceed today.' 10 Mr Moses then sought and obtained leave to withdraw from the hearing. 11 Later that day, the Magistrate embarked on the hearing, there being no appearance on behalf of the respondent. Mr Archer tendered various documents and called Mr Auberson. Mr Auberson produced calculations in relation to each of the five applicants and these were marked as exhibits. Mr Auberson said he had checked the bundy cards and personnel records in order to verify the days and times during which the people had worked and he affirmed the correctness of the calculations. 12 Evidence was given by each of the applicants in which they verified the information. At the end of the evidence, the Magistrate gave short reasons for judgment, in which he said this: 'The matters were set down for defended hearing today and at approximately just after ten o'clock Mr Moses of counsel appeared for the defendant seeking adjournment of the matter and on the refusal of the Court to grant the adjournment, mainly on the basis that this is an extremely busy Court, the matters had been set down for hearing for some time and also too the applicants are entitled to have their claims heard and also too the fact that really it was a delay on the part of the defendant in seeking a further delay and not really addressing the issues before the Court, that leave for the adjournment was refused and subsequently Mr Moses and the instructing counsel withdrew with leave of the Court and when the defendant company was called there was no appearance of the defendant company and the matter has proceeded in the absence of the defendant company. The matters were heard ex parte. Leave was granted to Mr Archer, who appeared for the applicants, to lead evidence and also that the matters be heard together. The matters are subject to the civil standard approved. I have heard the evidence of each of the applicants together with Inspector Auberson from the Federal Department and also too extensive calculations in the award have been produced. I am satisfied to the required standards that each of the applications is made out and accordingly each of the applications is found. There is a verdict for the applicant in each matter.' 13 The proposition that is put on behalf of the appellant is that the Magistrate erred in the exercise of his discretion because he gave dominant weight to the matter of Court efficiency. I do not think this represents a fair reading of the Magistrate's reasons. When he gave his reasons for refusing the adjournment to Mr Moses, the Magistrate made specific reference to the interests of the parties. The interests of the parties were of course in conflict. The applicants were present in Court and wishing to proceed. They were out of their money, in the sense that they did not have the moneys which they claimed to be due to them. They had taken time off work in order to attend court and they had arranged for Mr Auberson to be present. The interest of the respondent was to obtain an adjournment so that the respondent could do whatever was necessary to defend the matter. 14 The Magistrate referred to the importance of efficiency of Court administration and it seems to me this was undoubtedly a factor he was entitled to take into account. However, I do not think he gave the matter decisive weight. It is significant that the Magistrate had just set out the history of the matter and had emphasised, in the course of doing this, that the respondent had already had ample time in which to prepare for the hearing. When the Magistrate reverted to the subject, in his final reasons for decision after hearing the evidence, he used the words 'mainly on the basis that this is an extremely busy Court', but he immediately added the other factors. I do not think it is a fair reading of his statement to say that this was the main basis for the decision. I think the reasons should be read as saying that this was amongst the matters he had taken into account. 15 The ruling of the Magistrate was a discretionary one, as Mr Moses concedes. He refers to the principles that apply to a discretionary decision and are summarised in the High Court's decision in House v The King (1936) 55 CLR 499 at 504-505. It is appropriate also to refer to the later decision of the High Court in Adam P Brown Male Fashions Pty Limited v Phillip Morris Inc & Anor (1981) 148 CLR 170 at 177 and 180, in which the High Court emphasised that an appellate court ought to be particularly slow to intervene in relation to a decision made by a judge or magistrate on a matter of practice and procedure. 16 I see no error of law or principle in the Magistrate's decision to refuse an adjournment. Indeed, I go so far as to say that, if I had been in the same position as the Magistrate, I would have made the same decision as he did. It seems to me unacceptable for a respondent, in a matter that is being litigated in a court of summary jurisdiction, and who has had over three months notice of the claim, to wait until the morning of the hearing to instruct a lawyer to defend the claim. A party who chooses to take that course cannot expect that a court will be inclined to grant an adjournment to allow the newly instructed lawyer to become fully familiar with the claim. Parties are expected by courts, at any level, to take steps to prepare themselves for a hearing. 17 I think the Magistrate was correct to take the view that the respondent had had ample opportunity to prepare for the hearing. For its own reasons, the respondent had failed to take this course. There was no reason why the applicants should have been further delayed in the resolution of the case because of that fact. 18 The second argument that is put is that the Magistrate erred in law in failing to give adequate reasons for his ultimate conclusion that the applications should succeed. I see no merit in this argument. It is true that the remarks of the Magistrate were short, but they were to the point. The Magistrate expressly referred to the fact that he had heard evidence from each of the applicants and from Inspector Auberson and had had the benefit of extensive calculations, which he was satisfied were correct. 19 It is difficult to see what more needed to be said. No doubt it would have been possible for the Magistrate to go through the calculations in detail, but that would have been a waste of his time. It would have added nothing to anybody's understanding of the case. Detailed information had been put before the Magistrate. He had had it explained. He had had it verified by both the applicants and Inspector Auberson and he was satisfied that the calculations were correct. I see no error of law in the way in which the Magistrate dealt with that aspect of the matter. In the result, the appeal must fail and be dismissed. 20 Arrangements have already been made between the parties in regard to the costs of the appeal, so I need not deal with that matter. A sum of $80,000 was paid into this Court as a condition of a previous adjournment of this appeal. That money is currently held by the Registrar in the Litigants' Fund. I think the appropriate course is for me to direct the Registrar to pay the sum of $80,000, being held by him, to the solicitors acting for the present respondents, namely, David Archer & Associates, 2 Mount Street Glenbrook, on the basis that that amount will be distributed amongst the five respondents to the appeal in proportion to the amounts ordered to be paid to each of them by the Magistrate. That will still leave a balance but that is not a matter of concern to this Court. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.