WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES STEVEN RAINSFORD PENN, APPLICANT v. AIRPRO 2000 PTY LTD, RESPONDENT CORAM SENIOR COMMISSIONER A R BEECH DATE FRIDAY, 6 DECEMBER 2002 FILE NO. APPLICATION 58 OF 2002 CITATION NO. 2002 WAIRC 07162 _________________________________________________________________________________________________________ Result Application alleging denied contractual entitlements struck out for want of prosecution. Representation Applicant No appearance Respondent No appearance _________________________________________________________________________________________________________ Reasons for Decision (Extemporaneous) 1 In relation to this application, it is a relatively simple and straightforward claim for what the applicant, Mr Penn, has described as “holiday pay”. 2 It was filed in the Commission on 11 January 2002 and a conference was held on 25 March 2002. There was no appearance on behalf of the respondent. 3 The application was adjourned for one month and the Commission did not hear anything until 10 May 2002 when Mr Mitchell advised that Mr Penn intended to proceed with a prosecution of the award and that this application would be discontinued. In that regard, I do note that when Mr Penn filled out his application he stated that he that he was covered by the Metal Trades (General) Award 1966 and if that is the case then a prosecution of the award would be appropriate. 4 However, the Commission then heard nothing further. No Notice of Discontinuance was filed. The file note indicates that there was a conversation between the Commission and Mr Young on 2 September 2002 where Mr Young said that Mr Penn was still deciding what to do. In the absence of any further contact, the Commission advised on 7 October 2002 that it would list the matter For Mention Only unless it received advice within 14 days as to a reason why the application should not be discontinued. That Notice was sent to Mr Young. There was no reply to that letter. On 14 November 2002 the Commission wrote to Mr Young setting the matter down for 29 November 2002. There was no appearance by Mr Young on that day but it was then the Commission realised Mr Mitchell was Mr Penn’s appointed agent. 5 From the time of Mr Mitchell’s last contact on 10 May 2002, the Commission has not heard from Mr Mitchell and there is no explanation as to why Mr Mitchell is not here today either. 6 The final point is that although the Commission has sent copies of correspondence to Airpro 2000 Pty Ltd, in the circumstances the Commission has not required the company to do anything but merely note the progress of this matter. 7 On that history I have no hesitation in saying that this application should be struck out for want of prosecution. 8 The comments that Mr Young has put on the record this morning may perhaps provide some background as to why there has not been any progress in this matter. It seems to me somewhat surprising that for a claim as simple as this one which merely says “holiday pay”, some progress was not made in the matter presuming it was to be heard and determined by the Commission. I think the lapse of time from 10 May 2002 when Mr Mitchell last made contact until now is sufficient in the absence of any explanation from Mr Mitchell for this matter to be struck out for want of prosecution even though the respondent has not indicated it is suffering any prejudice by it continuing. 9 In relation to application 58 of 2002 for those reasons an order will issue today that the application be struck out for want of prosecution. _________ 82 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3315 2002 WAIRC 07163