Bowker & Anor v Software Engineers Australia

PARTIES : SECOND RESPONDENT: Timothy Arundell

THIRD RESPONDENT: Prophecy Technologies (Southern Region) Australia (NSW) Pty Ltd (ACN 087 222 419)

FOURTH RESPONDENT: ACN 087 222 357 Pty Ltd

FIFTH RESPONDENT: Prophecy People Pty Ltd (ACN 007 248 286) FILE NUMBER: IRC 291 of 1999 CORAM: Schmidt J CATCHWORDS : Unfair contract - adjournment application by fourth and fifth respondents - granted - fourth and fifth respondents ordered to bear other parties costs of adjournment hearing and costs thrown away as result of application being granted, as agreed or assessed HEARING DATES: 10/15/2003 DATE OF JUDGMENT: 10/21/2003

APPLICANTS: Mr D Knoll of counsel SOLICITORS: Haywards

FIRST, SECOND AND THIRD RESPONDENTS: Mr J Phillips SC LEGAL REPRESENTATIVES: SOLICITORS: Cutler, Hughes & Harris

FOURTH AND FIFTH RESPONDENTS: Mr R Alkadamani of counsel SOLICITORS: Pipers Lawyers & Advisors

JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J

GEOFFREY BOWKER & ANOR v SOFTWARE ENGINEERS AUSTRALIA (NSW) PTY LTD & ORS Application under s106 of the Industrial Relations Act 1996

INTERLOCUTORY JUDGMENT 1 This judgment concerns an adjournment application made by the fourth and fifth respondents, on 15 October 2003, during the resumed hearing, which it was anticipated would finally have resulted in the conclusion of these proceedings. The application was opposed by the applicants and hotly contested by the parties, apart from the first to third respondents, whose position was said to be neutral.

2 The application was made when Mr Dua, the fourth and fifth respondents' general manager, failed to return to Australia from Canada, where he had gone on 3 October to attend to business, on a trip planned for a considerable period of time. The fourth and fifth respondent's solicitor, Mr Bolden, was called to give evidence as to what had transpired.

3 The evidence led and the parties' submissions heightened a concern which I have had for some considerable time, as to the parties' approach to this litigation. It was also revealed that the applicants and some of the respondents are parties to proceedings initiated by those respondents in the Federal Court in 2002, a matter which came to play some significance in the attitude adopted by the parties to the adjournment application.

4 The evidence showed that prior to the resumption of the hearing, there had been considerable correspondence between the parties, including as to the supply of particulars of the applicants' claim against the fourth and fifth respondents, the evidence which the fourth and fifth respondents might lead, a foreshadowed adjournment application by the fourth and fifth respondents, a notice to produce which the applicants had served upon the fourth and fifth respondents about a month before the hearing and other matters connected with the hearing.

5 It was not, however, until Friday 10 October that the fourth and fifth respondents filed and served the affidavit sworn by Mr Dua on 3 October, on which they wished to rely at the hearing. They also served two motions, one seeking to set aside the applicants' notice to produce and the other, to adjourn the hearing. In addition, three notices to produce further documents were also served upon the applicants by the fourth and fifth respondents.

6 The motion dealing with the production question was dealt with at the outset of the hearing on 13 October. The first to third respondents' case was then dealt with to finality. The adjournment motion, which the Court was informed the fourth and fifth respondents had intended to press after Mr Dua had given his evidence, was not dealt with, because Mr Dua, who had travelled to Canada on 3 October, did not return to Australia at all. Instead, an adjournment application was made after the first to third respondents had closed their case.

7 Mr Bolden, who represents the respondents who have commenced the Federal Court proceedings in those proceedings, but not in these, explained his instructions from the fourth and fifth respondents. They were that Mr Dua had fallen ill and had encountered difficulty with paying his return airfare, so that it had not been possible for him to return to Sydney as he had planned. The earliest time at which he could return, was the following Friday, the last day listed for the hearing and that depended entirely upon him recovering his health, which could not be assured. Whether the funds to pay for the airfare were available, was not explored. Mr Bolden also gave evidence as to the attitude adopted by the fourth and fifth respondents to their obligations to produce the documents dealt with in their motion. That evidence showed what could only be described as quite an inappropriate approach to those obligations, by the fourth and fifth respondents.

8 Other evidence was led in relation to the fourth and fifth respondents' need to call expert evidence and the difficulties which they had encountered in doing so, given a recently discovered conflict, by the first expert they had engaged. Neither that person, nor the employee of the firm concerned who had sworn an affidavit about this situation, was available to be cross examined. It was agreed that Mr Bolden would be recalled, to be examined on the point, it being the position of the applicants that the expert had never had any connection with them. Mr Bolden's evidence was that the conflict had arisen as the result of the acquisition of a Sydney accounting practice, which had in the past had some dealings with the applicants. The identity of that practice was not known to Mr Bolden.

9 Having heard the evidence and the submissions, I concluded, with considerable reluctance given the evidence led and the history of these proceedings, that the adjournment application should be granted. I also decided that a costs order should be made in favour of the other parties, for the costs of the adjournment application being heard and the costs thrown away, as the result of the application being granted.

10 I came to these conclusions even though, on one view of the evidence, it might be thought that the purpose of the fourth and fifth respondents' adjournment application was to advantage the respondents to the Federal Court proceedings. Those proceedings are also concerned with the contract here in question. In September, long before any application was made to this Court to adjourn these proceedings, Mr Bolden was apparently indicating to the Federal Court, that these proceedings may not be completed, despite the hearing listed.

11 The respondents in September unsuccessfully sought to have the stay of the Federal Court proceedings lifted, because of the imminent hearing of these proceedings. The Federal Court matter is also shortly listed again, for further consideration.

12 Despite my reservations, I was, nevertheless, satisfied that justice in these proceedings required that the fourth and fifth respondents be heard to defend the applicants' claims.

13 I was influenced in this conclusion by the role of the fourth and fifth respondents in the proceedings. That flowed from the basis upon which the joinder of the fourth and fifth respondents had been ordered. This flowed from an alleged breach of an undertaking given to this Court, by the other respondents, in relation to the assets of the first and third respondents, which it is argued are now in the hands of the fourth and fifth respondents. That undertaking was given in order to settle an application for a mareva injunction against the first respondent. Whether the applicants will make out this aspect of their case cannot be known, as yet. I am satisfied however, that the fourth and fifth respondents must be heard and that the costs order which I have made provides an appropriate adjustment between the parties in the meantime, having in mind the interests of justice.

14 Having granted the adjournment the applicants sought that the respondents who are party to the Federal Court proceedings be required to give an undertaking to this Court, that they would not there press the lifting of the stay. The respondents declined to give such an undertaking and I took the view that it was not appropriate that I require it. Indeed, I am doubtful of the Court's power to do so. Orders were made as to the remaining steps required to bring this litigation to an end. It will conclude in February, or perhaps March, if I require counsel to address their written submissions.

15 Nevertheless, it is appropriate that I express my views about this aspect of the matters raised and argued in these proceedings. I reiterate the views which I expressed to the parties during the course of the hearing of the adjournment application. Having in mind the way in which this litigation has been conducted and what is here in issue, it would be a travesty were the applicants to the Federal Court proceedings now to utilise this adjournment, in order to advantage themselves in those proceedings.

16 As to the costs order, I make clear that the fourth and fifth respondents should bear the other parties' costs, as agreed or assessed, both for the hearing of the adjournment application and any costs thrown away as the result of it having been granted. I decline to order the fourth and fifth respondents to bear the other parties' costs for the Thursday and Friday of this week. I accept that this would be tantamount to ordering a cancellation fee, an inappropriate basis upon which to make any costs order, in my view.

17 The fourth and fifth respondents are ordered to bear the other parties' costs of the hearing of the adjournment application, together with the costs thrown away as the result of the application being granted, as agreed, or assessed. ------------------------

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