International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors

LEGISLATION CITED: Industrial Relations Act 1996 s106

CASES CITED: International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors [2006] NSWIRComm 186 International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors (No 3) [2008] NSWIRComm 132

FIRST AND SECOND APPLICANTS Mr A Britt of counsel Solicitors: Jordan Djundja LEGAL REPRESENTATIVES: FIRST TO THIRD RESPONDENTS Mr M Kimber SC Solicitors: Clayton Utz

International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors (no. 4)

Application under s 106 of the Industrial Relations Act 1996

FURTHER JUDGMENT ON INTERLOCUTORY APPLICATION TO EXTEND TIME FOR THE FILING OF APPLICANTS' AFFIDAVITS IN REPLY

1 The applicants in these proceedings, brought under s 106 of the Industrial Relations Act 1996, have been guilty of a chronic continuing failure to comply with orders of this Court made in and in connection with the preparation of these proceedings for hearing. Some of the history of the matter is referred to in my judgment in International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors [2006] NSWIRComm 186. Thereafter, on 9 April 2008 I made consent orders requiring the applicants to file affidavit material in reply on or before 4 June 2008 on the basis that a failure to comply would result in the proceedings being dismissed. The applicants failed to comply with that order. In a judgment given on 15 July 2008, I ordered that the applicants' affidavit evidence be filed by 4pm 15 days from that date, the date of that judgment being counted for that purpose, in default of which the proceedings would stand dismissed with costs. My reasons for extending this further leniency to the applicants were contained in my judgment published that day in International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors (No 3) [2008] NSWIRComm 132. The effect of that judgment was that unless the applicants' affidavits had been filed by 4pm on 29 July 2008, the proceedings would stand dismissed. The applicants filed one affidavit on 28 July 2008 and purported to file another affidavit on 30 July 2008, one day late. The period of 15 days had been fixed because the applicants' counsel had agreed that they would be in a position to file their affidavit material within a period of 14 days. It was that matter and that matter alone that persuaded me to exercise the Court's discretion in favour of the applicants. (See [22] of the judgment). 2 The affidavit filed 28 July 2008 was sworn 26 June 2008. It is 13 pages long consisting mostly of rebuttals. The affidavit sworn and filed 30 July 2008 is 25 pages long. It has no attachments. A large part is concerned only with rebuttals and it responds to an affidavit of Gary John McIntyre sworn 12 July 2007. 3 The applicants have now sought that further leniency be extended to them. It was not seriously argued by their counsel that the time for compliance was other than 4pm 29 July 2008. They relied in the exercise of discretion on an affidavit sworn by Louise Mott, employed by the applicants' solicitors as a paralegal. In her affidavit, Ms Mott said that she was contacted by Mr Constantinidis at approximately 10am on 29 July 2008 who asked that she telephone the Registry of this Court to find out when the affidavit had to be filed. She alleges in her affidavit that she was advised by a female person by telephone that, in calculating the time for compliance with my order, weekends were included "and the affidavits have to be filed by 4pm tomorrow." She understood this to be a reference to 4pm on 30 July 2008. She said that she then left a telephone message for Mr Constantinidis to that effect. Furthermore, she said "On that day, I could not speak to Mr Jordan (the solicitor for the applicants) as he was away from the office on a family holiday and I did not know how to contact counsel briefed in this matter." 4 The relevant principles which apply to a consideration as to whether time should be extended for compliance with this second self-executing order are set out in my most recent judgment ((No 3) [2008] NSWIRComm 132 at [17] to [19]). I note that the applicants bear the burden of demonstrating why a further indulgence should be granted to them. There are six matters that, on authority, I should consider and I will deal with each of them in turn.

5 There is no evidence before me as to any steps taken by the applicants to comply with the order for filing of the final affidavit material other than a telephone call on the last day for compliance to a paralegal in the applicants' solicitors' office. There is no explanation as to what steps were taken in the interim to ensure compliance. In that the applicants through their counsel had contended that a period of 14 days only was necessary for the preparation of the evidence in reply, when considered against the background of the sorry history of these proceedings, I must regard the non-compliance seriously. 2. Reasons proffered for non-compliance

6 No reason for non-compliance has been proffered other than a request for information about the last day for compliance made in a telephone conversation to a paralegal and an assertion that incorrect information was furnished by a member of the staff of the Registry of this Court. Even assuming that that staff member had sought advice from "the legal department" of the Registry as asserted by Ms Mott, it cannot be said that advice from Registry staff could in any way be understood to represent a definitive exposition of the effect of an order of the Court. This is a matter upon which the applicants' solicitor or counsel should have been asked to advise. There is no evidence of any such advice having been proffered. 3. The history of delay or breach of orders in the past.

7 These matters are set out in previous judgments. The delay in the prosecution of these proceedings by the applicants is appalling and there is a consistent history of breach of orders of this Court. 4. Prejudice to the respondents from permitting the proceedings to continue.

8 The respondents have participated in a number of interlocutory applications seeking to have the proceedings struck out. They have already succeeded on one occasion only to have a further indulgence granted to the applicants. I observe that the respondent parties to the litigation ipso facto suffer the burden of a contingent liability and, of course, incur legal costs. It is in their interests that the proceedings be brought to finality, assuming that it is appropriate to do so. Other than these matters, there is no evidence of any further prejudice to the respondents. 5. The authority of the Court

9 If this Court continues to permit the applicants to breach orders which have been made and extends even greater indulgence to the applicants, this must seriously bring into question the authority of the Court to make orders in connection with the case management process which will have some relevance to the conduct of the parties in the proceedings. Of course, case management is not an end unto itself and courts should be slow to seek to enforce orders merely for the sake of demonstrating the power of the courts to make orders. Nevertheless, if the case management process is to operate effectively for the "just, quick and cheap disposal" of the proceedings, some rigour needs to be exercised to ensure compliance except where circumstances warrant the grant of some indulgence. Conclusion

10 In my opinion, the applicants could have been under no misapprehension as to the effect of the last order made by me on 15 July 2008. In circumstances where there is no evidence of any steps taken by the applicants to comply with that order prior to 29 July 2008 and no reason advanced as to why the order could not have been complied with by the date and time so limited and, given the sad and sorry history of these proceedings, I am not prepared to extend any further indulgence to the applicants. Accordingly, the application for further time in which to comply with the order of 15 July 2008 is refused. I reserve the costs of this interlocutory application and grant liberty to apply in connection therewith.

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