WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Charles Henry Rosenthal

APPLICANT

-v-

John Palermo

RESPONDENT

CORAM Acting Senior Commissioner P E Scott

HEARD TUESDAY, 3 MARCH 2009, THURSDAY, 9 APRIL 2009, MONDAY, 11 MAY 2009, MONDAY, 31 AUGUST 2009, TUESDAY, 1 SEPTEMBER 2009, WEDNESDAY, 2 SEPTEMBER 2009, TUESDAY, 20 OCTOBER 2009, WEDNESDAY, 21 OCTOBER 2009, Thursday, 5 November 2009

DELIVERED friday, 15 January 2010

FILE NO. U 10 OF 2009, B 101 OF 2009

CITATION NO. 2010 WAIRC 00006

CatchWords Industrial Law WA – Industrial Relations Act 1979 – limitation on the period for presentation of the parties’ cases – s 27(1)(ha)

Result Orders issued limiting the times for presentation of cases

Representation 

Applicant Ms R Cosentino (of counsel)

Respondent In Person and Mr T Palermo (as agent)

Reasons for Decision

Background

1          On 5 November 2009, the Commission issued Orders, the recitals of which included that the Commission was of the view that in the circumstances of this matter that it was appropriate to determine the periods that are reasonably necessary for the fair and adequate presentation of the parties’ respective cases and to require that the cases be presented within the respective periods.

2          The Orders required the following:

“1. The Respondent file and serve further and better particulars of facts and issues of:

(a) the applicant’s alleged misconduct; and

(b) the applicant’s performance issues,

upon which it relies as reasons for the termination of the applicant’s employment no later than 28 days from Thursday, 5 November 2009;

2. The parties shall file and serve a list of the names of their witnesses and an estimate of the time necessary for examination in chief of each of those witnesses no later than 28 days from Thursday, 5 November 2009;

3. No later than 7 days after receipt of the other party’s list of witnesses referred to in Order 2 above, each party shall file and serve a notice of the estimated length of time for the cross-examination of each of the other party’s witnesses;

4. Reference to witnesses in Orders 2 and 3 above includes estimates of the time necessary to conclude the examination in chief of Victor John Matthews and the cross-examination of Charles Henry Rosenthal; and

5. The parties advise the Commission no later than 28 days from Thursday, 5 November 2009;

(a) an estimate of the length of time their closing submissions will take; and

(b) whether they would prefer to make closing submissions in writing; and

(c) if closing submissions are to be made in writing, the period to be allowed between the final day of hearing and the filing of closing submissions.

6.  The parties advise the Commission of their unavailable dates for the resumption of the hearing in February and March 2010.”

3          By letter dated 1 December 2009, the applicant’s solicitors advised that in accordance with Order 2, its only witness is Charles Henry Rosenthal and estimated that re­examination of Mr Rosenthal will be of 30 minutes’ duration, and that the applicant prefers to make oral closing submissions, the duration of which was estimated to be 30 minutes.

4          On 3 December 2009 the Commission received two emails from Mr Tony Palermo, one at 2.07 pm in the following terms:

“Orders .Full response will be by next Tues as adv in prev email

Brief response is as follows

Order 1 a tba failing which what has already been provided stands

  b as for a above

Order 2

Charles Rosenthal 3 to 8 days

Mr Rosenthal Senior 1 day

Mrs Rosenthal Senior 3 hours

C Rosenthal 3 hours

Vic Mathews 2 to 4 days

T Palermo 1 to 8 days

John Palermo 6 hours

N Nancarrow 4 hours

T Nancarrow 4 hours

B Nancarrow 4 hours

M Venn 1 day

T Venn 2 days

D Cabassi 2 days

R Cosentino 2 hours

Order 5

A 2 days

B in writing

60 days

Order 6 tba by Tuesday but at present Feb and March are out April is ok First 2 weeks in May ok June and July are out”(sic)

5          On 7 December 2009 the Commission received a letter from the respondent addressing the Commission’s Orders of 5 November 2009 which:

(1) In respect of Order 1 -

(a) Set out information relating to the applicant’s alleged misconduct and performance issues;

(b) Sought leave to amend the “defence” to provide a right to “set-off and counterclaim for damages that I have incurred either as a result of Mr Rosenthal’s negligence or refusal to attend to his duties”;

(c) Suggested that Mr Rosenthal calculate and provide details of holiday entitlements claimed, with a view to the claim being considered.

(2) In respect of Order 2 –

(a) Reiterated the times for examination of witnesses contained in the email of 3 December 2009; and

(b) Where the email had set out the names of witnesses N Nancarrow, T Nancarrow, B Nancarrow, M Venn, T Venn, D Cabassi and R Cosentino, by providing first names to those initials.

6          In respect of Order 5, the respondent’s letter said that the length of time for closing submissions was as previously advised, two days, and the preference was for closing submissions to be made orally.

7          In respect of Order 6, the respondent advised of his unavailable dates.

8          The respondent also sought that I reconsider my previous decision to discharge summonses issued to Mr Rosenthal Snr and Mrs Rosenthal Snr.  The respondent wishes to examine them about a number of issues which I will outline later in these Reasons.

9          By letter dated 14 December 2009 the applicant’s solicitors answered Order 3 in the following terms:

“In accordance with Order 3 we advise that the estimated length of time for cross-examination of the Respondent’s witnesses is as follows:

1 Vic Matthews  1.5 hours

2 Tony Palermo  1.5 hours

3 John Palermo  0.5 hours

4 Noel Nancarrow 0.1 hours

5 Todd Nancarrow 0 hours

6 Bob Nancarrow 0 hours

7 Michael Venn  0 hours

8 Tim Venn  0 hours

9 David Cabassi  0.3 hours”

The letter also expressed the view that the particulars of performance issues or misconduct relied upon by the respondent and set out in his letter of 7 December 2009 did not justify termination; that it was difficult to see how the evidence proposed by the respondent would be relevant; that the “Defence” was as vaguely and broadly framed as it was “merely to justify using the hearing as a lengthy and time wasting fishing exercise”.  The letter questioned “how Rachel Cosentino or the Applicant’s parents can give admissible evidence relevant to this case” and requested the Commission to “make orders limiting the time for presentation of the Defence without regard to the Respondent’s letter of 7 December 2009”.  The applicant’s solicitors also submitted that it was entirely inappropriate for the respondent to name Mr Rosenthal Snr, Mrs Rosenthal Snr, Chantel Rosenthal and Rachel Cosentino as further witnesses, noting:

“In relation to Mrs (sic) and Mrs Rosenthal Senior being witnesses, Senior Commissioner Scott has already made a determination disallowing the Respondent’s Summons served on Mr and Mrs Rosenthal Senior.  Mr and Mrs Rosenthal Senior advise that they have not otherwise been asked by the Respondent to give evidence on behalf of the Respondent.

Chantel Rosenthal was called as a witness by the Applicant.  She has been cross examined, has completed her evidence to the Commission and has been discharged.”

Issues and Conclusions

10       I have considered the history of this matter.  That history includes that the matter was listed for three days, and it was listed for a further two days, although some of that latter period was utilised for conciliation.  Mr Rosenthal’s evidence has already taken an inordinate time due to the way questions have been framed; an inefficient and time consuming method of cross-examination; a lack of clarity as to the reasons for dismissal, and due to Mr Rosenthal being reluctant to answer and unhelpful in answering questions such that he was required to be directed to answer on a number of occasions.  The manner in which the respondent in particular has approached the hearing to date has lacked discipline and if such an approach were to continue, it is conceivable that the hearing would drag on indefinitely.  This is further evidenced by the lack of precision in the respondent’s estimates of the length of time it will take for examination in chief of Mr Tony Palermo, the respondent’s own agent, where the estimate is between one and eight days, and for Mr Matthews, a further two to four days.

11       The Commission is not obliged to allow parties to take as long as they please.  It has an obligation to conduct hearings in an expeditious manner, and to do so in a manner which is fair to both sides.  To allow one side to proceed in a manner which places no obligation on that party to conduct it’s case efficiently would be an inefficient use of the Commission’s time, but also unfair and costly on the other party.  Section 27(1)(ha) recognises the need for the Commission to impose limits in appropriate circumstances.

12       Reviewing the history of this matter has reinforced my view as to the need for and appropriateness of issuing orders for the purpose of limiting the period for presentation of the parties’ respective cases pursuant to s 27(1)(ha) of the Industrial Relations Act, 1979 (“the Act”) to ensure that the hearing is conducted in a manner envisaged by s 26(1)(a) of the Act, in particular by the respondent’s proposals in respect of the length of time that it intends its witnesses to be under examination in chief. 

13       I note also that the respondent suggests that Chantel Rosenthal be under examination for three hours, however, Chantel Marie Rosenthal, the wife of the applicant, gave evidence on 2 September 2009 and was cross-examined.  Her evidence concluded that day.  There is no indication as to why she ought to be recalled. 

14      The respondent seeks that I reconsider my decision made early in proceedings to discharge summonses issued to Mr Rosenthal Snr and Mrs Rosenthal Snr.  The suggestion contained within Mr Palermo’s letter of 7 December is two-fold:

1. That if I do not reconsider that ruling then he “will have no alternative but to lodge an appeal against the ruling”.

2. That evidence given by the applicant:

“of certain critical information that was processed on Mrs Rosenthal Senior’s computer.  Despite continuous requests, the computer has not been produced.  Mrs Rosenthal Senior is required to give evidence not only of the ownership of the computer but of the information that was processed on her computer.  I can have a computer analyst examine the computer either at or prior to the hearing continuing so as to reduce hearing time”.

15       I have considered whether it is appropriate to reconsider my earlier decision regarding Mr and Mrs Rosenthal Snr being summonsed and my view on that matter has not changed. 

16       The evidence given by Chantel Rosenthal as to her use of the computer stands.  Appropriate conclusions can be drawn from that applying the rules of evidence.  Furthermore, it would appear that Mr Palermo wishes to examine Mrs Rosenthal Snr not only as to the ownership of the computer but about the information that was processed on her computer.  The only question which arose during Chantel Rosenthal’s evidence was the date upon which a particular document was typed.  Her evidence stands as it is and there is no indication as to why that evidence should or should not be accepted.  Further, there is no indication of what, if any, further evidence regarding “information that was processed on her computer” was necessary for the purpose of this hearing, and why Mrs Rosenthal Snr ought to be examined about that. 

17       As to Mr Rosenthal Snr, the respondent says that he is required to give evidence: 

“as it appears from what Mr Rosenthal (the applicant) has stated in cross-examination that at times while he was on leave he consigned the farm and all farming operations without authority to his father.  His father needs to be cross-examined as to the duties he undertook, stock numbers consigned to him and stock numbers re-consigned upon completing his ‘caretaking’ role”. 

There is no indication as to how this information is relevant.  It appears to go back to the question of stock numbers which Mr Palermo suggests were not as they ought to have been, whilst he denies there is any allegation of theft against the applicant. 

18       The questions which are before the Commission relate to the applicant’s performance of his duties.  He has given evidence of the circumstances under which he took leave and his father undertook duties for him.  I see no relevance in further examination of this issue in terms of evidence from Mr Rosenthal Snr.  I am of the view that Mr Palermo is seeking to use this hearing to gather information for purposes other than responding to the claim before the Commission, a matter clarified with Mr Palermo early in proceedings.

19       In respect of the evidence of Victor John Matthews, he was under examination in chief on 2 September 2009 from 2:00pm until 4:00pm.  For it to be suggested that his evidence in chief should now take between two and four days, without explanation, makes it difficult to accept that this is a fair and reasonable estimate of the time required of him.  Further, an examination of the transcript of the examination in chief on that day demonstrates that his examination could have been far more efficiently and effectively conducted in a shorter period of time that it took to that point.  There was also a great deal of repetition in the questioning of him.  Accordingly, I am prepared to allow Mr Matthews’ examination in chief for a further half-day or 2.5 hours.

20       As to the applicant, Charles Rosenthal, the respondent says that it requires him to be cross-examined for between three and eight further days.  Mr Rosenthal has already been under cross-examination for almost all of 1 September 2009, for more than half of the morning on 2 September 2009, and all day on 20 October 2009.  In deciding how much more time should be allowed for the cross-examination of Mr Rosenthal, I note how long he has already been under cross-examination; how long the hearing was originally scheduled for; that Mr Rosenthal has, from time to time, been directed by me to answer questions put to him because of his lack of cooperation, and that during the hearing of 20 October 2009, Mr Palermo responded to a question regarding the timing of Mr Rosenthal’s cross-examination and of Mr Matthews completing his evidence.  Mr Palermo said:

“Yes.  Mr Matthews has been programmed to be here tomorrow and, hopefully, we’ll get through Mr Rosenthal’s evidence today.” (Transcript page 259).

In all of those circumstances, I conclude that one further day of cross-examination of Mr Rosenthal, the applicant, ought to be quite adequate.

21       As to examination of the respondent’s own witnesses, the respondent suggests Mr Tony Palermo’s evidence will take between one and eight days.   Given that Mr Tony Palermo is conducting the case for the respondent, this is an extraordinarily inadequate and poor estimation and one is led to the conclusion that there has been no genuine attempt to make any proper estimate.  One would have thought that Mr Palermo would know how long his evidence will take.  In the circumstances, Mr Tony Palermo’s evidence is to be scheduled for two hours. 

22       As to John Palermo’s evidence, it is suggested that his will take six hours.  Given what I perceive to be gross over-estimations and unreasonable estimations of time for the respondent’s witnesses, and not having any information as to what evidence John Palermo would give during that six hours, I intend to order that his evidence be limited to two hours. 

23       Likewise, the estimates of the time for the evidence to be called of Noel Nancarrow, Todd Nancarrow, Bob Nancarrow, Michael Venn, Tim Venn and David Cabassi appear to be unreasonable.  In the case of each of these witnesses, I will schedule their evidence for one hour each. 

24       As to the respondent calling evidence from Rachel Cosentino, Ms Cosentino is the applicant’s solicitor representing him during these proceedings.  There is no explanation as to why she would be able to give any evidence of a relevant nature in this matter.  In the absence of such an explanation, it is not my intention to provide any time for her to be examined by the respondent.

25       The times for cross-examination of the respondent’s witnesses do not appear to be unreasonable given the times for examination in chief which I have set out above.  However, where the applicant has indicated that “0 hours will be required for cross-examination”, I will allow the applicant to apply to cross-examine those witnesses once their evidence has been given, provided that cross-examination is limited to 30 minutes in each case. 

26       The closing submissions shall be made at the conclusion of the hearing, orally.  The parties shall each have one hour for closing submissions. 

27       Minutes of Proposed Orders shall issue reflecting these time limits.