T11681
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Peter Pinchin and Paul Anthony Burridge
Appeal against a decision handed down by Deputy President Shelley arising out of T11466 of 2004 - Appeal dismissed - order confirmed REASONS FOR DECISION [1] This is an appeal against a decision of Deputy President Shelley in Matter T11466 of 2004. [2] The appeal was filed by the respondent to the claim; Peter Pinchin trading as Pete's Statewide Couriers (the appellant). [3] The Deputy President determined that:
[4] The appeal grounds are as follows:
[5] The Full Bench issued Directions to the parties for the presentation of written outlines of submissions and witness statements. The Directions were properly served. [6] The appellant failed to comply with the Directions issued and a further Direction required him to show cause why the appeal should not be dismissed. That Direction required a response by close of business 8 November, 2004. [7] A Statutory Declaration from the appellant was received by the Commission within the required time but failed to address the Direction of the Full Bench to "show cause why the appeal should not be dismissed." Nevertheless we decided to accept the Statutory Declaration as the appellant's outline and contention in respect to the appeal and the Respondent to the appeal was Directed to respond to the content of the Statutory Declaration. [8] The matter was listed for further hearing in Hobart on 2 December, 2004, [9] The appellant failed to appear. [10] We dismissed the appeal on that day and publish our reasons herewith. Background: [11] The appellant (the respondent in the matter below), failed to appear before Deputy President Shelley on the first day of hearing (18 May, 2004) forwarding a fax which claimed that he had only received notification the previous day. In that fax he asked that the applicant's agent "make an appointment with" him. He claimed that the application contained "a lot of information to be incorrect and misleading" but provided no further detail. [12] The Deputy President provided the appellant with copies of transcript from the hearing on 18 May, 2004. The matter was relisted on 31 May, 2004, and again the appellant failed to attend but provided a Statement, dated 31 May, 2004, which refuted the claims by the applicant. [13] In response to the written claim by the applicant that the employer had agreed to pay "the amount owing when the figures were calculated" the appellant said in his Statement:
[14] Transcript from 31 May, 2004, was forwarded to the appellant to allow him to provide a written response. An undated response was received on 15 June, 2004. The applicant provided a final submission in response on 23 June, 2004. Findings: [15] The appellant has been given every opportunity to defend the claims of the applicant in the hearing below. The decision of the Deputy President took into account the appellant's submissions and she has noted that in respect to the claim for annual leave entitlements the appellant's statement "is ambiguous and contradictory." [16] The Deputy President has preferred the sworn evidence of the applicant to that of the untested submissions of the appellant. The appellant was not able to cross examine the applicant in the proceedings below as he, the appellant, failed to attend on each of the scheduled hearing days. [17] We are of the view that the Deputy President has taken the correct approach. [18] The submissions of the appellant filed in respect to his appeal, albeit filed by Statutory Declaration, are untested as he failed to appear in person denying the Full Bench any opportunity to ask questions or seek clarification of the content. The Bench intended to seek clarification on a number of the appellant's claims and allegations at the hearing scheduled for 2 December, 2004. However, in the absence of the appellant no questions could be asked and no clarification could be sought as to his submissions. [19] Much of the submission is not relevant to our considerations and allegations made about the decision of the Deputy President are not supported by any reference. We reject as a nonsense the allegations of the appellant that the evidence and submissions of the applicant, and his solicitor, have been falsely made, and in any case those allegations are about matters not relevant to the appeal. The submissions of the appellant are generally confused, contradictory, and in parts incomprehensible. It would appear his main concern related to the amount of holiday leave and he complains that he "was never given the opportunity to dispute this." We reject this argument, he chose not to attend any of the hearings, including the appeal, and provided written statements which addressed the issue of holiday leave which the Deputy President took into account [20] The grounds of appeal are confused, ill-informed and plainly wrong. The Deputy President is a senior Member of this Tribunal and very experienced in exercising her powers under the legislation. We also find the appellant's claims that the Deputy President was "plainly biased and misguided" extremely offensive. There is absolutely no basis on which such claims could be made. [21] We find no error and reject the grounds of appeal and confirm the decision of the Deputy President. [22] We note that an application for costs against the appellant was made by the applicant's solicitor before the Deputy President. There is no ability in this jurisdiction to award costs. That is regrettable. The applicant has been required to take additional time off from his work due to the non-appearance of the appellant and the relisting of the matter and he has engaged legal counsel for both the hearing below and this appeal. His costs are possibly significant. We note also that the respondent had indicated he would settle the applicant's claim in respect to superannuation. He did not do so. [23] We are of the view that the behaviour of the appellant was reprehensible. It could be argued that his appeal was vexatious and not only wasted the time and money of the applicant but also was an abuse of the processes of the Commission. ORDER I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in full and final settlement of the matter referred to in T11466 of 2004 and T11681 of 2004 that (1) Peter K Pinchin trading as Pete's Statewide Couriers pay to Paul Anthony Burridge the sum of Six Thousand Four Hundred and Eleven Dollars and Twenty Five Cents by close of business on Monday, 20 December 2004 and that (2) Peter K Pinchin trading as Pete's Statewide Couriers pay Two Thousand Eight Hundred and Fifty Six Dollars in superannuation contributions for Paul Anthony Burridge into the TWU Superannuation Fund by close of business on Monday, 20 December 2004.
P L Leary Appearances: Date and place of hearing: |