WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES MARIO PIETRACATELLA

APPELLANT

 -v-

 W.A. ITALIAN CLUB (INC)

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  COMMISSIONER J F GREGOR

  COMMISSIONER S WOOD

DELIVERED MONDAY, 13 AUGUST 2001

FILE NO/S FBA 18 OF 2001

CITATION NO. 2001 WAIRC 03509

_______________________________________________________________________________

Decision  Appeal dismissed.

Appearances

Appellant   Mr G A Lacarenza (of Counsel), by leave

Respondent   Mr C S Fayle, as agent

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT:

1                 This is an appeal by the abovenamed appellant against the whole of the decision of the Commission, constituted by a single Commissioner, given on 28 March 2001.  The decision by the Commission was that the application by the appellant, made pursuant to s.29 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”), be dismissed.

GROUNDS OF APPEAL

2                 It is against that decision that the appellant appeals on the following grounds:-

       “1. The learned Commissioner erred in law and or in fact in deciding that the Applicants (sic) application be dismissed pursuant to S27(a)(ii) of the Act on the basis that further proceedings were not necessary or desirable in the ‘Public Interest’ as

   (a) The Applicants claim was properly brought before S29 of the Act being a claim for ‘Unfair Dismissal’.  Whether notice of termination was provided or whether termination was summarily as pleaded is not a determinative issue as the only criteria to be satisfied under the Act is that of “unfair” dismissal.

   (b) At all times the Appellant/ Applicant noted in his Form 1 Particulars of Claim and Further and Better Particulars that this date of dismissal was the 22nd June 2000.

   (c) The function of ‘Particulars’ was to elaborate and plead the material facts in support of the Appellant/ Applicants (sic) claim for Unfair Dismissal, which the Particulars filed and dated the 22nd March 2001 achieved.

   (d) The Particulars did not raise ‘new issues’ but pleaded material and relevant facts that would enable the Respondent a fair opportunity to meet and answer the Appellant/ Applicants (sic) case.

   (e) There was ‘no prejudice’ or ‘sufficient prejudice’ to the Respondent on receipt of the Particulars the 22nd March 2001 as the Trial was listed for the 2nd  and 3rd  of April 2001.  In the alternative, any perceived or actual prejudice would be cured by a re-scheduling of Trial dates and any issues as to costs or penalties reserved for the Commissioners (sic) discretion at the eventual hearing.

   (f) The allegations of prejudice raised by the Respondent were not significant or determinative of the issues before the learned Commissioner as

    (i) At all times the Respondent had the opportunity of obtaining instructions from its Committee members in the intervening period between the 22nd March 2001 and the 2nd April 2001.

    (ii) The allegations raised by the Respondent that the Respondents (sic) Committee is ‘dysfunctional’ was not a relevant or appropriate consideration as the issues of dysfunctionality of the Committee is not related to the Applicants (sic) claim.

    (iii) The Respondents allegation that notice of dismissal was given the 22nd June 2000 for the FIRST-TIME in the Particulars is not sustainable as the Appellant/ Applicant at all material times stated in his Form 1 that the date of termination was the 22nd June 2000.

   (g) At all material times the delay in the filing of ‘the particulars’ was not due to any fault on the part of the Appellant/ Applicant and the prejudice suffered by the Appellant/ Applicant outweighs any prejudice suffered by the Respondents.

   (h) The failure of the Appellant/ Applicant to attend to the request for Particulars is (sic) a timely way was not fatal to the Respondents claim as:-

    (i) The Trial dates had already been listed

    (ii) There was no sufficient reasons for the respondents to seek to vacate the trial dates.

    (iii) No application to vacate the trial dates of the 2nd and 3rd of April 2001 was made by the Respondent.

    (iv) No evidence was provided to the learned Commissioner of what costs or what reasonable costs by way of question had been expended thus for and would further be expended if an adjournment of the trial dates was necessitated.

   (i) The learned Commissioner did not weigh up sufficiently that the Form 1 particulars were prepared in a sketchy and brief manner by the Appellant/ Applicant in person and that the subsequent Particulars did not raise a ‘different claim’ but a properly pleaded claim informing the Respondent of the material facts to be met.

   (j) Her Honor (sic) misdirected herself as to the meaning of Subsection (ii) of Section 27(i) a – “that further proceedings are not necessary or desirable in the public interest” when applying the particular circumstances and facts pertaining to the Appellant/ Applicants (sic) case before the Commissioner.”

BACKGROUND

3                 The appellant, as the applicant at first instance, made an application to the Commission and sought relief pursuant to s.29 of the Act, which was filed in this Commission on 23 June 2000, alleging that he had been harshly, oppressively or unfairly dismissed by the respondent employer club, and/or that he had been denied outstanding benefits which were non-award entitlements to which he was entitled pursuant to his contract of employment.

4                 An application by the respondent to strike out the application was heard by the Commission on 23 March 2001.  The Commissioner then decided that she would dismiss the application pursuant to s.27(1)(a)(ii) of the Act since she was satisfied that further proceedings were not necessary or desirable in the public interest.

5                 The history of the matter was as follows.  The appellant stated in his application that he was employed as a chef and started work as an employee of the respondent on 8 May 2000 and that his employment was terminated on 22 June 2000.

6                 Under the heading in his application “Why do you claim you are unfairly dismissed?” (paragraph 20), the appellant replied “Last Friday I was called in the office and told I was dismissed.”  He also claimed that he was not seeking reinstatement but compensation of four to six weeks’ pay, being an amount between $3,325.00 and $4,988.50 (see page 10 of the appeal book (hereinafter referred to as “AB”)).

7                 On 13 July 2000, the respondent filed a Notice of Answer and Counter Proposal, the particulars of which stated that the appellant was informed on 13 June 2000 by the Manager of the club that his employment would be terminated and he was given one week’s notice of termination.  It was also stated that he worked until 22 June 2000.

8                 A meeting of the parties was convened by Deputy Registrar Bastion of this Commission on 22 August 2000.  At that meeting, an offer was made to resolve the matter on behalf of the respondent, but the matter was not resolved.

9                 The Commissioner then held a conciliation conference on 17 October 2000, pursuant to s.32 of the Act, at the conclusion of which the matter was again not resolved, and the appellant advised the Commission that he wished to list the matter for hearing.  He also said that he intended to brief Mr G Lacarenza of Counsel to appear on his behalf.

10              After that, solicitors having been instructed by the appellant, the Commissioner, after consulting with the appellant’s solicitor and the agent for the respondent about hearing dates, on 20 November 2000, listed the matter for hearing and determination on 5 and 6 February 2001.

11              There was an application made by the respondent’s agent on 24 November 2000 for Further and Better Particulars of Claim.  The Commissioner advised the respondent’s agent that, before the application for particulars could be considered by the Commission, the respondent should write to the appellant’s solicitor and request further and better particulars.  On 4 December 2000, such a request was conveyed in writing to Mr Lacarenza.

12              On 4 January 2001, the respondent’s agent wrote to the Commission advising that he had not received a response to his letter of 4 December 2000.  The letter also requested that the Commission deal with the respondent’s application for particulars, claiming consideration should be given to vacating the hearing dates on the basis that, in the absence of particulars, the respondent might be caused unnecessary prejudice.  The letter also advised that the respondent’s agent had been informed that Mr Lacarenza’s office was closed until 15 January 2001.

13              The Commission listed the application for a further conference on 17 January 2001.  The conference was attended by Mr Skivinis from the office of G A Lacarenza and Associates, Solicitors, together with the appellant.  Mr C S Fayle, the agent for the respondent, together with the respondent’s Secretary Manager, Mr Perroni, appeared on behalf of the respondent.  In fact, this was not a true directions conference, but a type of directions hearing.

14              At the conciliation conference, the parties agreed that the dates of hearing, namely 5 and 6 February 2001, should be vacated and that:-

 “(a) The Applicant provide further and better particulars of why it is alleged he was harshly and oppressively dismissed and in relation to his claim for four to six weeks’ compensation;

 (b) The Applicant’s further and better particulars be provided to the Respondent and filed within 21 days;

 (c) The Respondent to file and serve an amended Answer within 14 days of the receipt of the Applicant's further and better particulars;

 (d) Mr Fayle and Mr Lacerenza to provide to Commissioner Smith’s chambers unavailable dates for March and April by close of business 25 January 2001.”

15              The Commissioner then, having ascertained the dates when Mr Lacarenza and Mr Fayle were available, re-listed the matter for hearing and determination on 2 and 3 April 2001.

16              The Commission’s file revealed, as the Commissioner found, the following:-

(a) That further and better particulars of the application were not filed by 7 February 2001.

(b) On 16 February 2001, Ms Kotsopoulos, a Chambers Liaison Officer, left a message with a person called Natalie at Mr Lacarenza’s office inquiring whether the further and better particulars had been sent to the respondent’s agent.

(c) On 7 March 2001, Mrs Edwards, the Associate to the Commissioner, telephoned Mr Lacarenza’s office enquiring whether the further and better particulars had been provided and filed.

17              On 20 March 2001, the Commission received an application by letter from the respondent’s agent requesting that the appellant’s application be dismissed pursuant to s.27(1)(a) of the Act.  That letter relevantly stated as follows:-

“…

  As of this date the Respondent has not received any correspondence from the Application re his Claim, and believes that the order of the 17th January has been ignored.  The order was made in the first place because the Respondent was unable to understand what the claim was, and therefore unable to properly prepare its case.  The situation is not only unchanged in this regard, it has now assumed a position whereby the Respondent faces significant prejudice if this matter is to go ahead on the dates set.  Even if the Applicant complies with the Order today, the Respondent now has less than the allocated 14 days in which to prepare for a two-day hearing.

  The Respondent therefore asks that the Commission exercises its powers under Section 27(1)(a) of the Industrial Relations Act 1979 and dismisses the Application.  The inability of the Applicant and his Representative to supply any Further and Better Particulars of Claim clearly shows the triviality of his claim.  Further, and in the alternative, it is submitted that it is not in the public interest to subject the Respondent, a non-profit organisation, to the inconvenience and expense of defending itself in a two-day hearing into mystery allegations.  If there was any substance to anything we should have known by now.”

18              The Commission listed the application to strike out for hearing on 23 March 2001. 

19              On 22 March 2001, further and better particulars of claim were faxed to the respondent’s agent by the appellant’s solicitor and were filed in the Commission on that day. 

20              Paragraphs 4 to 9 of the further and better particulars of claim states as follows:-

  “4. The Applicants employment ceased on the 22nd day of June 2000 where the manager a Mr P Perroni for the Respondent informed the Applicant that the Central Committee had discussed his employment the evening of the 21st day of June 2000 and dismissed him from his employment.

  5. No reasons were provided to the Applicant as to why he was dismissed and no opportunity was afforded to the Applicant to speak to the Committee in respect of his apparent dismissal.

  6. Subsequently the Applicant was informed by individual members of the Committee that the issue of his dismissal was not discussed and did not form the agenda of its meeting the 21st day of June 2000.

  7. The Applicant was unlawfully and unilaterally dismissed by the Secretary of the Club by falsely representing to the applicant that the termination of employment came from the committee when in fact that was not true.

  8. Accordingly the Applicant left the employ of the Respondent under a false assumption that he had been dismissed when in fact it was the actions of the Secretary who acted without authority at all times.

  9. In the premises the Applicant had suffered loss of face, and reputation in the eyes of the Club Membership.”

 (See pages 57-58 (AB).)

21              Certain submissions were made to the Commission at first instance by the respondent in support of the application to strike out the appellant’s claim and for an order that the claim be dismissed and these were as follows:-

  “(a) The further and better particulars raise a different case to that raised in the Applicant's application filed on 23 June 2000.  In particular the Applicant claims that he was informed that he was to be dismissed on 16 June 2000 and then worked for a week, whereas the further and better particulars of claim state that the Applicant was informed his employment was terminated on 22 June 2000.  Accordingly the Applicant's claim has changed from termination of employment by the giving of notice to a claim that he was summarily dismissed.

  (b) The particulars raise new issues in that it is claimed that the Respondent's Secretary/Manager did not have the authority of the individual members of the Respondent's Committee of Management to terminate the employment of the Applicant.  Further it is claimed that the issue of the Applicant's dismissal was not discussed at the Committee meeting on 21 June 2000. 

  (c) In light of the allegations set out in the further and better particulars the Respondent would be prejudiced if the trial proceeds on 2 and 3 April 2001.  Firstly because the Respondent needs to speak to its members of its Committee (who were members in June 2000) about an alleged meeting on 21 June 2000.  Mr Fayle on behalf of the Respondent informed the Commission that the Respondent's Committee is dysfunctional and that it may be difficult to speak to those members.  Secondly in light of the fact that the Respondent has been given notice for the first time that the Applicant was not informed his employment was terminated until 22 June 2000, the Respondent needs to locate an ex-employee of the Respondent who was employed to replace the Applicant and who commenced work in the Applicant's last week of employment.”

 (See page 24 (AB).)

22              Mr F F G Voon of Counsel, who appeared on behalf of the appellant at that hearing, advised that the reason why the particulars of claim were not attended to until 22 March 2001 was because of inadvertence by his firm.  There was then discussion with Mr Voon in which it was observed that the particulars of claim appeared to be inconsistent with the application in that the nature of the claim had changed from termination of the contract of employment by the giving of notice, to an allegation of summary dismissal.

23              Mr Voon sought a short adjournment and took further instructions from the appellant, after which he informed the Commission that the appellant recalled that there was some discussion about a week before he was terminated, but that he was not given notice that his employment was terminated until 22 June 2000.

24              It was submitted on behalf of the appellant that the Commission should not exercise its discretion to dismiss the application since the reason why the further and better particulars were not provided to the respondent was because of an oversight by the appellant’s solicitors and not the fault of the appellant himself.  Further, it was submitted that he would suffer an injustice if his claim was struck out, that the claim was not trivial, and that he was ready to proceed to hearing on 2 April 2001.

25              The Commissioner then went on to conclude that further proceedings were not necessary or desirable in the public interest and that she would order, pursuant to s.27(1)(a)(ii) of the Act, that the appellant’s claim be dismissed for the following reasons:-

  “(a) I accept that the Applicant has not personally been responsible for the failure to attend to the request for further and better particulars in a timely way.  Further I have had regard to the consequences to the Applicant of dismissing his claim and to quantum of his claim.  However, in my view, the considerations set out below are matters in the public interest that outweigh the prejudice to the Applicant.

  (b) All Applicants have a duty to prosecute their claims without any delay. 

  (c) In Kangatheran v Boans Limited (1987) 67 WAIG 1112 at 1113 the Full Bench approved of remarks made by a Commissioner at first instance "that the proceedings were expensive proceedings and that in the public interest there was a necessity for the Applicant to assiduously apply himself to the pursuit of his claim …".

  (d) In this matter the failure to attend to the request for particulars in a timely way:

   (i) Resulted in vacation of the dates set for hearing in February 2001; and

   (ii) Would have necessitated the dates set for hearing in April 2001 be vacated.

  (e) The consequence of the failure to provide further and better particulars is that costs are incurred to the Respondent, in that this Commission has no power to make any award for professional costs that the Respondent has incurred in getting up for an application for an adjournment of the hearing on 17 January 2001 and for the application to dismiss (Brailey v Mendex Pty Ltd t/a Mair and Co Maylands (1992) 73 WAIG 26).

  (f) I  am satisfied that the further and better particulars raise a different claim.  Accordingly, I have had regard to the fact that it is not desirable in the public interest for a Respondent to be confronted with a different claim at a late stage of the proceedings which would necessitate a further adjournment of these proceedings. 

  (g) Further I have had regard to the fact that there is a cost to the public in vacating trial dates at a late stage of proceedings.”

ISSUES AND CONCLUSIONS

26              The decision at first instance was a discretionary decision, as that term is defined in Norbis v Norbis (1986) 161 CLR 513 (see also Coal and Allied Operations Pty Ltd v AIRC (2000) 74 ALJR 1348 (HC)).  It is trite, therefore, to observe that, for the appellant to succeed, it was necessary for the appellant to establish that the exercise of discretion by the Commission at first instance had miscarried, according to the principles laid down in House v The King [1936] 55 CLR 499 (see also Gromark Packaging v FMWU 73 WAIG 220 (IAC)).

27              If the appellant does not establish that the exercise of the discretion at first instance miscarried according to those principles, then the Full Bench can have no warrant to interfere with that exercise of discretion.

28              In this matter, what occurred was a matter of record and, in any event, not in issue before the Full Bench.  I have detailed it above, as was the fact and as the Commissioner correctly found.

29              This matter was commenced by an application filed about nine months before the hearing of the order to strike out the application.  An answer and counter proposal had been filed.  There were then two s.32 conciliation conferences where no agreement was reached.  The matter was then listed for hearing on 20 November 2000, to be heard two and half months later on 5 and 6 February 2001.

30              In the meantime, after a request for further and better particulars was inexplicably made to the Commission, a request for further and better particulars to the appellant’s solicitors was made on 4 December 2000.  In fairness to the solicitors for the appellant, I should observe that they did not become involved in the matter until November 2000.

31              The request for particulars was made after the matter was listed for hearing in February 2001 and almost five months after the answer and counter proposal was filed.  There was no provision of further and better particulars in answer to that request.

32              That necessitated what amounted to a directions hearing in the Commission on 17 January 2001, at which agreement was reached between the parties, primarily to vacate the dates set for the hearing, that having occurred over a month after the request for further and better particulars was made.  There were also agreed the other steps to be taken, which I have mentioned above and, particularly, the appellant’s agreement by his solicitors to provide further and better particulars twenty-one days later; that is, on or before 7 February 2001.

33              The matter was then listed for hearing in the Commission on 2 and 3 April 2001 which was six weeks after the event.  No further and better particulars were provided within time and had not been provided more than two months after the agreement to provide them of 17 January 2001.

34              The application to strike out was requested by letter by the respondent on 20 March 2001, over two months after 17 January 2001, and listed for hearing on 23 March 2001.  In the meantime, on 22 March 2001, over two months after the event and ten days before the hearing was due to commence, the further and better particulars were filed in the Commission.  I should add that this was close to four months after the request for further and better particulars was made on 4 December 2000.

35              The further and better particulars alleged, for the first time, it was said, a summary dismissal and not a termination.  More materially, the appellant alleged an unauthorised and unlawful dismissal effected by the Secretary of the respondent without the knowledge or consent of the respondent’s Committee of Management.  Moreover, the particulars did not, as was agreed, provide particulars of the appellant’s claim for four to six weeks’ compensation.  In particular, whether there was alleged a loss of four or six weeks’ wages was not made clear.  The only particular of claim for compensation was for injury.

36              It was submitted to the Commission at first instance by Mr Fayle, for the respondent, inter alia, that the claim for summary dismissal was a new one and that the nature of the particulars was such as to require the obtaining of instructions from an ex-employee and from members of the Committee of Management.  From that submission, it followed that, within the ten days available, there was not sufficient time to prepare and a further adjournment, a second adjournment of the hearing date, would be required.

37              It was part of the submissions for the respondent, too, that, if there was an adjournment, there was not available a sufficient remedy in costs which there is not (see s.27(1)(c) of the Act which does not permit an order of costs for the services of a legal practitioner or agent).

38              What is certain was that there was an unexplained delay in the providing of further and better particulars from 4 December 2000 to 22 March 2001.  What is the fact is that further and better particulars had been agreed to be produced long before the second set of dates fixed for the hearing.  What is the fact, too, is that the solicitors for the appellant did not attend to the provision of further and better particulars before a set of hearing dates and then not until ten days before a second set of hearing dates in April 2001.  There was an admitted fault on the part of the appellant’s solicitors.

39              What was also open to be found is that the further and better particulars, when they were provided, did raise different grounds requiring the obtaining of instructions and the interviewing of certain witnesses, within ten days, a time span which was not enough.  That the time span was not enough was not disputed.

40              What was disputed was that the respondent’s answer, which was detailed, was a reflection that the respondent’s agent was sufficiently instructed to deal with the matter, including the allegation of summary dismissal without cause.  There is some substance in that argument because the answer and counter proposal details allegations of misconduct.  By the application filed, it was alleged (paragraph 20) that the appellant was called in and told that he was dismissed without reason being given (“last Friday”) and “by the Committee member” (sic).

41              That, in my opinion, might well have been sufficient to indicate an allegation of unjustified summary dismissal.  However, the particular which alleges that the dismissal was unauthorised by the Committee is entirely new, the particulars of the alleged dismissal as to time, date and other circumstances are new, and the need to obtain instructions and/or statements from the Committee members and an ex-employee would require time.

42              In all of the circumstances, including the uncontroverted assertion that the Committee of Management was dysfunctional, it was open to correctly find that ten days might not be a sufficient time to interview all witnesses and obtain instructions.  Further, there was no particularisation, as agreed, of the loss.  In addition, the question of the ability to file and serve the further amended answer and counter proposal within the agreed time was now also in doubt.

43              The fact that these matters were to be attended to by agreement and not by order did not relieve the appellant of the obligation undertaken by him through his solicitors, or his solicitors, because what was given was an undertaking, or tantamount to an undertaking, by his solicitors to do certain things including to provide particulars within a certain time.  There is no valid reason submitted why the appellant should be relieved of that undertaking and the consequences of non-compliance with it by his solicitors.  (The appellant is, in any event, bound by their acts (see s.31(3) of the Act.)

44              For the reasons which I have outlined, particularly the very late filing of particulars after a first date of hearing had to be vacated, is a clear occasion of prejudice.

45              It was submitted that the Commissioner did not, on 23 March 2001, discharge her duties pursuant to s.32 of the Act to conciliate the matter.  I must say that, as I understand it, she had already determined in November 2000, following two s.32 conferences where no agreement was reached, to arbitrate the matter which she had listed for hearing for that purpose.  Further, the matter was listed a second time for hearing by agreement of the appellant’s solicitors.  This followed on the vacation of the first dates for hearing because of the fault of the appellant, through his solicitors.  There is no merit in that submission.

46              It is trite that the error, as the Commissioner found, was not that of the appellant, but of his solicitors, but there was an unexplained delay in the provision of particulars of about four months which would reasonably lead to a second hearing, which was listed without proper recompense in costs, being adjourned.

47              As was observed in similar terms in Kangatheran v Boans Limited (FB)(op cit), it is not in the public interest (see s.26(1)(c) of the Act) that matter should not be expeditiously dealt with in this jurisdiction.  There is no doubt that the appellant did not assiduously pursue his claim.  In this case, there was a failure to provide particulars until nearly four months after the request and ten days before the second listed hearing, and only after an application to dismiss the application had been filed and served.

48              Further, for the reasons which I have expressed, the interests of the respondent required a resolution of the matter.  When the order was made, the point had been reached where the delay and the loss of two separate hearing listings, because of unexplained and insupportable delays caused by the appellant, meant that the prejudice occasioned to the respondent was outweighed by the delay and irrecoverable expense caused by the omissions of the appellant by his solicitors.  That it was not his personal doing is outweighed, in this case, by that factor, by the extent of the delay, and by the public interest in saving unnecessary expense and requiring a “litigant” in this jurisdiction to be reasonably assiduous and prompt.

49              Further, there was no submission that the merits of the case were such as to merit a hearing, although, to be fair, it was not suggested either on behalf of the respondent that there was no merit.  Nonetheless, I would have thought that that was a matter which should have been submitted in opposition to the application to dismiss.

50              For those reasons, it was open to the Commissioner at first instance to find as she did and she was correct to do so.  In particular, she was correct to find as she did and as I have reproduced those findings (supra) in paragraph 25 of these reasons.

51              There was no error established in the exercise of the Commissioner’s discretion at first instance.  She correctly dismissed the application.  For those reasons, I dismissed the appeal.

COSTS

52              The agent for the respondent in this matter made an application for an order that the appellant pay the costs of the appeal which were, in fact and correctly, disbursements.

53              The Full Bench decided, following the reasons for decision in Re an application by CMETSWU 78 WAIG 1585 (FB), that this appeal was not such an extreme case as to warrant an order for costs.  There was sufficient merit in the appeal to require it to be made, heard and determined, and not to be regarded as an extreme case.

54              The application for an order for costs was therefore dismissed.

COMMISSIONER J F GREGOR:

55              I have had the opportunity of reading the Reasons of His Honour the President.  I agree with His Honour in all respects and for the same reasons as he I would dismiss the appeal.  I agree to that the application for costs made by the Respondent should also be dismissed.

COMMISSIONER S WOOD:

56              I have read the reasons for decision of His Honour the President.  I agree with those reasons and have nothing to add.