WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2015 WAIRC 01056 CORAM :Commissioner S J Kenner HEARD : Tuesday, 27 October 2015, Monday, 30 November 2015 DELIVERED : Monday, 30 November 2015 FILE NO. : U 127 OF 2015, U 128 OF 2015 BETWEEN : Kelly Louise Fragomeni; Suzanne Maree Walley Applicants AND Ngunytju Tjitji Pirni (ABN: 89 716 158 382) Respondent Catchwords : Industrial law - Termination of employment - Harsh, oppressive and unfair dismissal - Application to re-open unfair dismissal applications - Exceptional circumstances - Application granted - Respondent to compensate applicants for the costs and expenses of applicants' agent Legislation : Industrial Relations Act 1979 (WA) Result : Reasons for decision issued Representation: Counsel: Applicants : Mr M Fitzgerald as agent Respondent : Mr J Lilleyman of counsel Case(s) referred to in reasons: Case(s) also cited: R v Kelly (Edward) [2000] 1 QB 198 at 208 === REASONS FOR DECISION === ¶1 Ex Temporé ¶2 I have considered this application that has been made by the respondent for leave to re-open the substantive applications. I have considered carefully the evidence Ms Skelly filed along with the application for leave to reopen, which is now the subject of evidence before the Commission as exhibit R1. Ms Skelly has been and is a director of the respondent organisation. ¶3 Having considered that evidence I accept the thrust of it that at or around the time of the respondent’s funding being withdrawn and at that time the dismissal, not only of the applicants, but it seems all of the staff of the respondent in the period late July and early August 2015, the respondent itself was in somewhat of a shambles. Also on the evidence before me Ms Logan, who shortly thereafter seemingly on the evidence assumed the role of chair of the respondent, regrettably and sadly suffered a major personal issue which precluded her from effectively conducting the matters as presently before me, on behalf of the respondent. Also is the evidence of Ms Skelly, uncontradicted, that there was a degree of tension and disagreement amongst the board members themselves in relation to no doubt a range of matters. ¶4 The Commission has a broad discretion in matters such as these and wide powers under s 27(1) of the Act. The relevant principles in relation to the seeking of leave to reopen generally in civil proceedings, which I adopt and apply as a guide for present purposes, are set out by the learned author in Bernard Cairns 10th edition of Australian Civil Procedure at paragraph 16.240. ¶5 Ultimately the issue is the attainment of justice and what that might require and of course, material prejudice to the other party is a relevant consideration. In light of everything that has been before me I have had regard to the case put by the respondent and the reasons which have accompanied the application and consider in the circumstances, there are exceptional circumstances. I therefore propose to grant leave to the respondent to reopen the case to enable it to put its case in reply to the applicants’ unfair dismissal claims before the Commission. However there will be some cost to the respondent. The respondent will be required to compensate the applicants for the costs and expenses of the applicants’ agent in his appearance today in the leave to reopen application. Apart from of course, professional services costs which are precluded under the Act from being the subject of an order. Those costs are to be agreed or as determined by the Commission.