Darc Rasmussen v Eltrax Systems Pty Ltd

Darc Rasmussen v Eltrax Systems Pty Ltd - [2003] NSWIRComm 157 - NSWIRComm 2003 case summary — Zoe

[40]

20 The first Notice of Motion filed by the Applicant's solicitors on 3 October 2002 seeking leave to proceed against the Fifth Respondent was made pursuant to Rule 112(4) of the Rules seeking leave to proceed against the Fifth Respondent on the basis that no appearance had been entered but process had been served outside Australia. It came before me in the first instance on 30 October 2002 for directions. On that occasion, the following exchange occurred as between myself and Ms Scott, the solicitor who appeared for the Respondents: SCOTT: If I could appear for the first four Respondents and by your leave the Fifth Respondent and I will file my Notice of Appearance, as I have only just got these instructions this morning. HER HONOUR : Yes certainly. Thank you very much. This was a matter where there was a bit of a problem with the Fifth Respondent. Is that right? SCOTT: This matter has had a long history. HER HONOUR : For a matter that has not got to any sort of a hearing yet it has an enormous file. SCOTT: Your Honour, we have agreed on a timetable for filing of further material. HER HONOUR: You have now put a formal appearance for the Fifth Respondent? SCOTT : Yes and I will file the relevant bit of paper. HER HONOUR: You can do it here. I know that is generally not the way it is done but there is a practice if you want to do it in Court which I will allow you to do and we will undertake to provide a copy to the Registry. SCOTT : Thank you, your Honour but I only received these instructions to appear this morning so I have not even drafted it. HER HONOUR: You can take it to the Registry when you have got a moment. You have agreed upon a timetable, you say? SCOTT : Yes, your Honour. FISHER: It is the Applicant's Notice of Motion to proceed against the Fifth Applicant. (sic) HER HONOUR: That is still an issue notwithstanding your appearance. FISHER: Yes, your Honour. HER HONOUR : Would you undertake, forgive me again Ms Scott, I know you are here for the Fifth Respondent but you have put in appearance for all the other Respondents as well. SCOTT : Yes, and we have filed responses.

[70]

47 It is not my intention to detail all that is contained in that affidavit of Ms Nielsen. None of it was significantly challenged by the Respondents. What that affidavit material does evidence is that there was delay and difficulties in securing service on the Fourth and Fifth Respondents. Some of that delay was occasioned as a result of an accident to the Applicant which required a period of hospitalisation and delayed his attention and his ability to take steps to secure service on the Fourth and Fifth Respondents. The other reason for delay on the part of the Applicant can only be put down to the pressure of work commitments of the Applicant who at all times was being advised by his solicitors in Sydney to take the necessary steps to secure service. There is no doubt that there was a hiatus of some three months where little if any steps appear to have been taken by the Applicant to do that. The only explanation for doing so is the pressure of work commitments already referred to. At the same time however, it must be stated that the Fifth Respondent and, on instructions, Gadens Lawyers were not doing anything to facilitate service upon the Fifth Respondent. That much is evidenced by their refusal, on instructions, to disclose to the Applicant's solicitors in Australia the name of the new company that had taken over the business of Eltrax. There is also evidence in the affidavit material of Ms Neilsen that not only was there the change of name but the 'new' Fifth Respondent changed addresses, had 'taken all the signs down' and was, as described by the Applicant, 'hiding' the company. Whether that is an accurate depiction of the Fifth Respondents actions is not certain but it would tend to accord with the Fifth Respondent's instructions to Gadens Lawyers not to disclose its identity. In any event, those actions understandably caused a further delay while steps were taken by attorneys and process servers in the United States to locate the address of the Fifth Respondent under the name of Verso Technologies Inc.

[99]

77 I am of the view that the Fifth Respondent has been served. True it is it has been served out of time and the Applicant and his solicitors have been tardy is some respects in locating and formally serving the Fifth Respondent. On the issue of the discretion available to the Court to allow leave to serve out of time, I have regard to the decision of Wright P in Taudevin and particularly at para [42]: …the relevant principles as to the extension of time issue, could be usefully gathered from a number of recent decisions … the granting of an extension of time is not automatic and in order to exercise its discretion to extend time the Court requires inter alia proof that compliance with the rules will work an injustice upon the applicant for an extension of time. This requires the Court to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal to extend time: New South Wales Teachers Federation v The New South Wales Office of the Board of Studies [2000] NSWIR Comm 1 at 21-24 , where I held: …the grant of an extension of time is not automatic and the object of statutory provisions fixing a time to appeal is to ensure, so far as is reasonable, that the times fixed are obeyed. However, it is clear on the authorities that the times fixed - be they fixed by rules or statute - are not intended to be instruments of injustice and generally speaking the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties. The discretion can only be exercised in favour of an extension of time upon proof that compliance with the rules will work an injustice upon the applicant therefore which necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time. …it is relevant that no serious argument has been put in relation to the question of futility of the appeal or as to any prejudice if the application is granted. That is significant.

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