McKinnon v Prime Practice Pty Limited [2006] NSWIRComm 254 | Case summary

1 The parties have been advised that an application by the respondent to vacate hearing dates set in this matter has been refused. These are the reasons for that decision. 2 This matter was referred to me pursuant to Practice Direction 17 to determine a notice of motion filed by Prime Practice Pty Ltd ("the respondent"), seeking orders that the hearing fixed for 24, 25 and 26 October 2006 be vacated and that the matter be heard on 11, 12 and 13 December 2006. 3 The background to this matter is that an application pursuant to s 84 of the Industrial Relations Act 1996 ("the Act") was filed on 23 March 2006. When the matter was listed for conciliation before Commissioner Connor on 2 June 2006, there was no appearance on behalf of the respondent. During the course of the proceedings on that day, the applicant submitted that it believed the respondent had contacted the Commission seeking an adjournment of the conciliation although the Commissioner had no record of any application. 4 The matter was adjourned to 24 July 2006 for conciliation. No settlement was reached on that day. The Commissioner made directions and the matter was fixed for hearing on 24, 25 and 26 October 2006 to suit the convenience of senior counsel. 5 The file contains a file note of the Deputy Industrial Registrar dated 27 July 2006. It reads as follows: This unfair dismissal matter was before Connor C on 24.7.06. Standard directions were issued and parties were sent to the Registry counter for hearing dates to be set in accordance with PD 17. I attended the Registry counter to assist the Registry Officer as Counsel for the respondent stated that his client was unavailable to have this matter heard before 11 December 2006. When I enquired as to the reason I was advised that the client is a small business, is involved in providing training seminars which involved travelling and the dates were set a year in advance. I had a conversation with the Registrar and then advised the parties that the matter would be listed for hearing as soon as possible after the standard directions for compliance and parties were to make themselves available. Counsel for the respondent then stated that he was not available before the week of 23 October 2006. Three dates were set down for hearing being 24, 25 and 26 October 2006. Counsel advised that he would be lodging a Motion to set the dates aside. The Evidence 6 Mr R Goot SC, who appeared for the respondent relied on an affidavit of Phillip Julian Palmer, the Managing Director of the respondent, sworn on 1 August 2006. The respondent conducts seminars to train dentists and their team members in leadership and the management of dental practices. Mr Palmer deposed that during February to early December each year the defendant conducts approximately 100 workshops for dentists. No workshops will be conducted between 9 December 2006 and 31 January 2007. Workshops are booked 12 months in advance. Senior counsel has advised Mr Palmer that it would be necessary for him to give evidence together with the General Manager, Anita Roubicek and three consultants. 7 Mr Palmer further deposed that because of his commitments and those of the General Manager there was no time when they would be available for three consecutive days before 9 December 2006. Nor was it possible for the three consultants to be available on any day prior to 9 December 2006. 8 Mr M J Booth, appeared as agent for the applicant and opposed the application for an adjournment. Mr Booth tendered a document that records the courses that the respondent is conducting in October 2006. The document records that on 24 and 25 October 2006, a Team Masters (Dentist and Team) Workshop will be conducted in Brisbane. On 26 and 27 October 2006, a Workshop (Dentists only) will be conducted in Sydney. No explanation of who, on behalf of the respondent, would be conducting these workshops was provided to the Commission. Submissions 9 Mr Goot submitted that it would be simply extremely impracticable for all of the proposed witnesses to give evidence if the dates in October are retained. 10 Senior counsel submitted that "we don't make the application lightly, but would point to the absence of prejudice to the applicant in the proceedings". Mr Goot observed that the applicant does not seek reinstatement, but seeks compensation. Counsel observed that the real question that arises is if the applicant was successful, she is being kept out of money for seven weeks longer than if the hearing was in October. 11 Senior counsel conceded that this could amount to a prejudice to the applicant. However, he observed that "it could be compensated for at the end of the day". 12 Mr Goot also observed that there had been no demur from the applicant when the respondent had initially sought the matter be listed in December 2006 and that the applicant had changed its position. The request for a December listing had been rejected by the Industrial Registrar. 13 Mr Booth commenced his submissions by stating that the applicant had not changed its position. Hearing dates had been allocated by the Industrial Registrar and accepted by the applicant. 14 Mr Booth conceded that the workshops conducted by the respondent involved one trainer and one consultant and that there are approximately seven consultants and five persons who could operate as a trainer. It was submitted that the respondent had not made sufficient efforts to accommodate the hearing dates. 15 Mr Booth conceded that if the hearing proceeded in October 2006, it may cause some inconvenience to the respondent but in his submissions the respondent had not established that they had really investigated avenues by which witnesses might be in attendance over the three days and that witnesses could be interposed. Consideration 16 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 on which the application will be dealt with by arbitration is definite and that it should be understood that adjournment applications will be granted only on clear and compelling grounds. In my experience in dealing with Practice Direction 17 default matters, the dates fixed for the hearing of this matter have been set later than would normally be the case in respect of such matters. In effect, the respondent has already had the benefit of an adjournment to dates which were suitable to senior counsel. This is a second application for an adjournment. 17 Mr Goot submitted that clear and compelling grounds existed for an adjournment in circumstances where the respondent would be precluded from properly presenting its case if the matter proceeded on the days fixed for hearing. 18 It was contended that if the matter was adjourned there would be no prejudice to the applicant. I disagree. The applicant was employed as a consultant coach between 14 March 2005 to 6 March 2006 and was in receipt of a gross salary of $1,250 per week. Any compensatory order would be important to her. 19 It was also contended in the respondent's letter to the Industrial Registrar seeking to have this matter re-listed (which was replaced by the notice of motion), that to refuse the adjournment where the respondent's witnesses were not available would be a denial of natural justice. In my view, this is not a proper application of the principles of procedural fairness, or a rule of practice. To adopt such a principle in an unqualified form would involve this consequence - that a litigant could determine his own time for the hearing of a case brought against it. Such an approach could result in a party experiencing significant delay which suits the convenience of a respondent who owes an obligation to an applicant. In any event, in my view, there can be no question of a denial of natural justice when the respondent has in excess of two months notice of the hearing. Procedural fairness does not arise when a party is only making itself available at a specific time of their choosing. This would mean that the proceedings would be dependent on the dictates of a party, a ludicrous proposition. 20 Furthermore, there are interests other than the interests of the parties to be considered. The workability and the practice in respect of unfair dismissal applications are considerations of importance in this application. 21 Practice Direction 17 reflects the legislative purposes implicit in s 84 of the Act. The proper administration of justice is to ensure this occurs. The fact that an applicant is only seeking compensation is still a vital consideration for an applicant. There is a degree of arrogance attached to an application in such circumstances. 22 Furthermore, the Commission has an obligation to conduct business before it in a manner which is efficient, effective and prompt as is consistent with high standards of justice. If the respondent's grounds for adjournment were to be taken to their logical conclusion, it would mean that this respondent in any year or years would only be available for hearings between mid December and 31 January, if its Managing Director, General Manager and three consultants were involved in the proceedings. 23 This Commission has observed in a number of recent decisions that Practice Direction 17 will be strictly applied: Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36; Gu v Nature's Care Manufacture Pty Ltd [2006] NSWIRComm 39; Dedov v Apollo Life Sciences Ltd [2006] NSWIRComm 55; Pritchard v Trident Global Pty Ltd [2006] NSWIRComm 83 and Craig Maguire and Plasdene Glass-Pak Pty Limited [2006] NSWIRComm 112. 24 In determining this application, I am required to take into consideration the overall interests of justice as between the parties and the intention of the Act. In my view, further delay would be contrary to the intentions of the Act, particularly bearing in mind the nature of the proceedings. For the reasons set out earlier in this judgment, I decline the application for an adjournment. 25 I confirm that the matter will proceed to hearing on 24, 25 and 26 October 2006.

McKinnon v Prime Practice Pty Limited

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