Bernard George Madden v Electromagnetic Spectrum Pty Limited and others

CATCHWORDS: Unfair contract - notice of motion - application by respondents seeking vacation of date of ex parte hearing - application opposed - respondents' failure to comply with orders of the Court and failure to follow Court procedures - notice of motion dismissed - costs.

LEGISLATION CITED: Industrial Relations Act 1996 Industrial Relations Commission Rules 1996

Applicant/respondent on the motion: Mr B. Taylor Solicitors: Henderson Taylor Workplace Lawyers LEGAL REPRESENTATIVES: Respondents/applicants on the motion: Mr A. Howen, of counsel Solicitors: Anderson Lawyers

Bernard George Madden v Electromagnetic Spectrum Pty Limited and others

Application under s 106 of the Industrial Relations Act 1996.

1 This is an application by the respondents by way of notice of motion seeking orders that the hearing of this matter which has been set down on 20 February 2006 for an ex parte hearing be vacated. Other orders sought on the notice of motion include an order that the respondents file and serve a response to the summons for relief within seven days, and, an order that the matter be set down for a conciliation conference. The application was opposed by the applicant/respondent on the motion. 2 The notice of motion was filed on Wednesday, 15 February 2006 following orders made by me for short service. Given that the ex parte hearing had been set down for 20 February this Court has made its best endeavours to hear the application in the short period of time which is available. However, due to other commitments unable to be changed at such short notice only one hour could be made available for the hearing of the application. 3 I heard the application on Friday, 17 February and made orders that the application be dismissed and that costs be awarded to the applicant/respondent on the motion. I now publish my reasons. 4 By way of background to the application it is instructive to refer to some of the documentary material which sets out the procedural history of the matter, and, illustrates the conduct of the parties throughout these proceedings. 5 On 7 December 2004 the applicant, Bernard George Madden, filed a summons for relief under s 106 of the Industrial Relations Act 1996. By 17 February 2005 the respondents had not filed an appearance as required by the Industrial Relations Commission Rules 1996. On 31 March 2005 Kavanagh J set the matter down for an ex parte hearing to be heard on 9 June 2005. The respondents did not appear on 31 March 2005 and no notices of appearance at that stage had been filed. On 9 June 2005 the applicant sought and was granted an adjournment until 22 September 2005. On that day the respondents appeared before her Honour Justice Kavanagh. Mr Howen of counsel was instructed to act on their behalf. Kavanagh J made directions that the respondents file a reply to the summons within fourteen days, and also file a list of issues in relation to a pending conciliation hearing. The applicant was also directed to file a list of issues within fourteen days. 6 The file was later allocated to me and a date for conciliation was set down for 15 November 2005. Notifications of Court Listing were sent by registered post to all respondents on 7 October 2005. The address to which the notifications were sent was the respondents' correct address. This was confirmed by Mr Howen in oral submissions made before the Court on behalf of the respondents on 17 February. Nevertheless, the notifications were returned marked "unclaimed" on 16 November 2005. In addition attempts were made by my Associate to inform the second and third respondents by telephone of the date, time and place of the conciliation hearing on 6 and 7 October 2005. Those attempts were not successful. At that stage appearances had still not been filed by or on behalf of the respondents. Mr Howen was therefore informed of the details of the conciliation hearing by sending to him a facsimile of a Notification of a Court Listing to his business address on 6 October 2005. The notifications informed the parties of the date location and time of conciliation as follows: Tuesday 15th November 2005 at 2:00pm at the Industrial Relations Commission Court 4.1 - Level 4, Hospital Road Court Complex, (Behind The Mint Building) MACQUARIE STREET, SYDNEY NSW 2000 7 On 15 November the matter was called on at 2pm. The respondents did not appear. At 2.03pm the respondents were called three times outside the Courtroom but again failed to appear. The applicant represented by Mr Taylor, solicitor informed the Court that the respondents had not made contact since 22 September 2005 when the matter had been before Kavanagh J notwithstanding several attempts by the applicant to correspond with them. According to Mr Taylor mail sent to the respondents was either unclaimed or ignored. Mr Taylor also expressed concern on behalf of the applicant that the matter experience no further delays and that no further prejudice be suffered. 8 On 17 November 2005 a notice of appearance was filed on behalf of the respondents by Anderson Lawyers. On 21 November 2005 a transcript of the judgment of 15 November 2005 was sent to the address of the respondents' lawyers and on 7 December notifications of appointment of the ex parte hearing which were addressed to each of the three respondents were sent by facsimile to Anderson Lawyers. 9 It should be observed that at this stage the respondents had not complied with the orders of Kavanagh J made on 22 September 2005 which required a reply to the summons to be filed within 14 days and a list of issues for the conciliation hearing to be filed at the same time. 10 Nothing further was heard from the respondents until Wednesday 15 February 2006 when the Court was requested to order short service of the notice of motion. 11 On 17 February 2006 Mr Howen appeared for the respondents and Mr Taylor appeared for the applicant. The notice of motion was opposed by Mr Taylor on behalf of the applicant. Mr Howen informed the Court that the respondents had attended the court complex in Bridge Street in the mistaken belief that the conciliation was to be heard at that address. Upon realising the mistake attempts were then made to contact the Hospital Road registry but without success. At 2:25pm Mr Howen and the respondents attended the court premises at Hospital Road however by that time the Court had adjourned. 12 During the hearing of the application Mr Howen was asked to address three concerns of the court in relation to the history of the proceedings. These were: (i) why did the respondents not enter notices of appearance until 17 November 2005; (ii) why had the respondents failed to attend the conciliation hearing of 15 November 2005; (iii) why the application had been made as late as 15 February 2006 to vacate the ex parte hearing date when the respondents had been on notice since mid November 2005 of the hearing date. 13 In the view of the Court satisfactory explanations were not forthcoming from the respondents for any of these concerns. Mr Howen asked the Court to accept that he alone was to blame for the respondents' non-attendance at the conciliation hearing of 15 November. The respondents however were aware of the date of the hearing. In addition the precise details of the location of the conciliation hearing were set out in the notifications. In relation to the respondents' failure to comply with Kavanagh J's orders I note that a draft reply to the summons has been annexed to an affidavit of Dante Aspite the respondents' solicitor on the record. No leave however has been sought by the respondents under the Rules to file a reply to the summons following the filing of the notice of appearance on 17 November 2005. In relation to the third concern raised by the Court Mr Howen failed to give the Court any satisfactory explanation as to why the respondents had taken so long to make an application to vacate the ex parte hearing date of 20 February 2006, and why the application when made was made so close to the hearing date. 14 Mr Taylor in opposing the application contended that the history of the matter exemplified a failure by the respondents to comply with earlier orders made by the Court and to follow court processes. In addition the respondents he said have consistently failed to communicate with the applicant. This conduct resulted in a litany of ongoing delays. The applicant on the other hand has endeavoured to progress the matter. The delay caused by the respondents the applicant says has caused him acute anxiety and distress. He is unwell and has financial concerns. None of the delay is attributable him. 15 This brief history of the proceedings does in my view disclose a failure by the respondents to comply with the orders of the Court and a failure to follow Court procedures. Notwithstanding Kavanagh J's orders on 22 September 2005 that the respondents file a reply to the summons within 14 days, to date no such reply has been filed and no steps have been taken to seek the leave of the court to do so. A notice of appearance was not filed by the respondents until 17 November 2005 although the applicant's summons was filed on 7 December 2004. The respondents did not appear before the Court until 22 September 2005 even though the matter had been before the Registrar and the Court on several prior occasions. In relation to the respondents' non-attendance at the conciliation hearing on 15 November 2005 I do not find the explanation given to the Court convincing. The respondents were aware of the details of the hearing. The respondents have also failed to give a satisfactory explanation to the Court as to why the present application was made so close to the ex parte hearing date. This factor I find the most persuasive against the granting of the respondents' application. The respondents were aware of this date as early as 15 November 2005 yet made no attempt to approach the Court until 15 February 2006 when the notice of motion was filed. A letter annexed to Mr Aspite's affidavit written by the respondents' lawyers to the applicant's lawyers and dated 16 November 2005 advises that they intend to make an application to vacate the orders made on 15 November 2005 setting the matter down for an ex parte hearing. No further action however was taken by them until 15 February 2006. Given these matters it was my view that the requirements of s 109(2) of the Act had been fulfilled and, as a matter of discretion, taking into account the prejudice which would flow to the applicant if the ex parte hearing did not proceed, I therefore declined to grant the application. The notice of motion was accordingly dismissed and the costs of the motion awarded to Mr Madden. _____________________________

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.