Sakr v Sam Ebeid & ors

Industrial Relations Commission (NSW)|2008-11-25|Before: Marks J

Industrial Relations Commission of New South Wales in Court Session

CITATION: Sakr v Sam Ebeid & ors [2008] NSWIRComm 242

APPLICANT Norman Sakr FIRST RESPONDENT PARTIES: Sam Ebeid SECOND RESPONDENT Andrew Travers THIRD RESPONDENT Darren Price

Civil Procedure Act 2005 Industrial Arbitration (Special Provisions) Act 1984 s185 Industrial Relations Act 1996 s106, s108B LEGISLATION CITED: Industrial Relations Commission Rules 1996 r89 Legal Profession Act 2004 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005 r36.11, r36.16

Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209 Ove Arup Pty Ltd v WorkCover Authority (NSW) [2005] NSWIRComm 49, 141 IR 78 CASES CITED: Taylor v Taylor (1978-1979) 143 CLR 1 Woods v Sheriff of Queensland (1895) 6 QLJ at 164 WorkCover Authority of NSW (Inspector Mark Morganthal) v DHL Exel Supply Chain (Australia) Pty Ltd, McGill Holdings Pty Ltd and DTC Pty Ltd (No 2) [2008] NSWIRComm 49

HEARING DATES: 19 & 25 November 2008 & 11 December 2008

APPLICANT Mr M Foley Foleys Solicitors LEGAL REPRESENTATIVES: FIRST AND SECOND RESPONDENT Ms K Lopes Mr S Ingui Colin Biggers & Paisley

Application under s 106 of the Industrial Relations Act 1996

INTERLOCUTORY JUDGMENT ON APPLICATION TO REVOKE ORDERS

1 These are proceedings brought by the applicant, Norman Sakr, against the respondents, Sam Ebeid, Andrew Travers and Darren Price, seeking certain relief under s 106 of the Industrial Relations Act 1996. The summons for relief was filed on 12 December 2006. 2 On 17 October 2008, the first and second respondents filed a notice of motion seeking the following orders: "1. A declaration that the applicant is in breach of directions dated 23 May 2008, 17 July 2008 and 11 September 2008. 2. An order that the applicant's summons for relief be struck out. 3. An order that the applicant pay the respondents' costs of this motion as agreed on or assessed. 4. Any other orders that the Court deems fit." 3 The grounds for the relief sought in general terms were based on alleged breaches by the applicant of directions made by this Court in and in connection with the preparation of the proceedings for hearing. 4 Initially, the return date for that notice of motion was set down for 10am on Thursday 30 October 2008. The parties were then advised that that date had been vacated. On 21 October 2008, the Court file shows that an "appointment for hearing" document was forwarded to the solicitors for the applicant and the first and second respondents by facsimile transmission, fixing the hearing of the notice of motion for 9.30am on 29 October 2008. A transmission report contains an indication that the transmission was "OK" by which I understand that the facsimile transmission was successfully made to, relevantly, the applicant's solicitor, Michael David Foley. 5 The motion came on for hearing at that time on that day and there was no appearance for the applicant either by Mr Foley or any other person. At the hearing, Ms Lopes, solicitor, appeared for the first and second respondents and she furnished to the Court evidence of having served the notice of motion and affidavits in support by facsimile transmission. 6 There being no explanation for the absence of any representation by the applicant, I proceeded to deal with the matter and delivered an ex tempore oral judgment that day, dismissing the summons for want of prosecution. Furthermore, I made an order for the payment of costs in favour of the first and second respondents. 7 By notice of motion, filed 4 November 2008, the applicant sought an order that the orders made by me on 29 October 2008 be revoked and that the applicant be granted leave to "immediately file his evidence in chief." 8 The grounds and reasons were, in summary, that the failure to appear at the hearing of the earlier notice of motion "was due to the inadvertence of his solicitor", that the applicant wished to defend any strike out motion brought by the first and second respondents and that the applicant was "ready" to file his evidence in chief. 9 The hearing of the applicant's notice of motion commenced on 19 November 2008. On that occasion, Mr Foley, the applicant's solicitor, appeared on his behalf and Ms Lopes, solicitor for the first and second respondents. 10 At the hearing, Ms Lopes submitted that having struck out the applicant's summons, the proceedings were at an end and the Court was functus officio and was unable to deal with the motion. Was the order perfected?

11 The applicant asserted that the order which I had made was not perfected and that jurisdiction and power to vary or rescind it was enlivened accordingly. The respondents submitted that the order was perfected. I apprehend that the determination of this issue will not ultimately affect the outcome of the proceedings. Nevertheless, in deference to the arguments put by the parties, I shall briefly outline my reasons for concluding that the order that I made was, indeed, perfected in the sense that it has been entered into the records of the Court. 12 A Full Bench of this Court in Ove Arup Pty Ltd v WorkCover Authority (NSW) [2005] NSWIRComm 49, 141 IR 78 has held that pronouncement of orders on the day of judgment and the provision of a written copy of the judgment and orders immediately thereafter constitutes entry of judgment so as to allow it to be characterised as perfected. At [26], the Court (Wright J President, Walton J Vice President and Boland J (as his Honour then was)) said: "26 The practice in relation to judgments and orders made by the Commission in Court Session is that a written judgment is prepared that also contains any orders to be made. The orders are normally pronounced on the day of judgment and the parties are immediately provided with a written copy of the judgment and orders. No further steps are taken to formally enter the judgment in records of the Court. In this respect, pronouncement and entry may be said to occur simultaneously, entry having been made in the written judgment and by its delivery in open court. We consider this is the established practice for the purposes of r 89 of the Commission's Rules and, accordingly, the practice, procedure or usage of the Supreme Court, Court of Appeal or Court of Criminal Appeal referred to in r 89(5) of the Commission's Rules in respect of entry of judgments and orders is not applicable." 13 This practice was the subject of observation by Handley AJA in the New South Wales Court of Appeal in Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209. At [7], his Honour said: "7 The variations which the claimant sought in the orders of the Court Session would have significantly changed the substance of its earlier orders. The practice of the Industrial Court and its predecessor has been to treat its orders as entered immediately they are pronounced orally in open court: Ove Arup Pty Ltd v WorkCover Authority [2005] NSW IRComm 49; 141 IR 78, 87-8 par [26]. Whether this practice should continue or an alternative such as automatic deferred entry should be introduced is a matter for the Industrial Court." 14 Spigelman CJ and Mason P agreed in the judgment of Handley AJA. 15 The circumstances which apply to these proceedings are arguably different from those referred to by the Full Bench in Ove Arup. My judgment striking out the proceedings was delivered orally and ex tempore. There was no question of a written copy of the judgment and orders being given to the parties at the time. 16 However, there are, as the Full Bench observed in Ove Arup, no provisions in the Rules of this Court for the entry of a judgment in any records of the Court. 17 It may be, therefore, that the conclusion of the Full Bench in Ove Arup, that there is an established practice, procedure or usage of this Court, may not apply to orders which are made orally unaccompanied by any written reasons for judgment given to the parties immediately thereafter. If this is the case, the provisions of Rule 89(5) of the Rules of this Court would apply. Rule 89(5) is in the following terms: 89 Supplementary practice before Commission (5) Where: (a) there are no relevant provisions, and (b) there is no established practice, procedure or usage, and (c) there is no Rule, order, direction or Practice Direction in force, the practice, procedure or usage for the time being of the Supreme Court or, in the case of appeals, the practice, procedure or usage for the time being of the Court of Appeal or the Court of Criminal Appeal, as may be appropriate, is, as far as practicable, to regulate the practice, procedure or usage of the tribunal. 18 The relevant practice, procedure or usage of the Supreme Court of New South Wales is that contained within Rule 36.11 of the Uniform Civil Procedure Rules 2005 which is in the following terms: 36.11 Entry of judgments and orders (cf SCR Part 41, rule 11) (1) Any judgment or order of the court is to be entered. (2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system. (2A) If the court directs that a judgment or order be entered forthwith, the judgment or order is taken to be entered: (a) when a document embodying the judgment or order is signed and sealed by a registrar, or (b) when the judgment or order is recorded as referred to in subrule (2), whichever first occurs. (3) In this rule, a reference to a judgment or order of the court includes a reference to any judgment, order, determination, decree, adjudication or award that has been filed or registered in the court, or of which a certificate has been filed or registered in the court, as referred to in section 133 (2) of the Civil Procedure Act 2005 . (4) This rule does not limit the operation of rule 36.10. 19 There is a reference in Rule 36.11(2) to the recording of an order in a computerised court record system. Such a system is utilised by this Court, referred to as the CITIS system. I can confirm that the orders which I made and which included an order that the proceedings be struck out, were entered into that system on 29 October 2008. 20 Accordingly, I conclude that the orders that I made were perfected. Does this Court possess inherent jurisdiction or power to vary or rescind the orders?

21 I discussed the inherent jurisdiction or power to correct errors possessed by this Court in WorkCover Authority of NSW (Inspector Mark Morganthal) v DHL Exel Supply Chain (Australia) Pty Ltd, McGill Holdings Pty Ltd and DTC Pty Ltd (No 2) [2008] NSWIRComm 49. Some of the discussion contained within that judgment is relevant for the purposes of these proceedings. I set out hereunder [34] to [40] of that judgment. "34 This court is established by s 152 of the Industrial Relations Act 1996 as a superior court of record. It is a court of equivalent status to the Supreme Court and the Land and Environment Court. Nevertheless, the jurisdiction of this Court is circumscribed by the Industrial Relations Act 1996 and any other legislative source of jurisdiction.

35 The limits of the inherent powers of a statutory court, namely the Federal Court of Australia, were discussed in the High Court of Australia in Jackson v Sterling Industries Limited (1987) 162 CLR 612. In addition to the jurisdiction of that Court granted by legislation, s 23 of the Federal Court of Australia Act 1976 granted the Court power 'to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.' All members of the High Court confined the power given by s 23 so as to limit it '….to the making of orders in relation to matters in which the Court has jurisdiction and it does not extend the jurisdiction of the Federal Court. Nor could that Court's implied power be employed to create and enforce new rights. Whilst the implied power carries with it all that is necessary for the proper functioning of that Court, it does not extend its jurisdiction beyond that which is vested in it.' (Per Wilson and Dawson JJ at 619). Their Honours upheld the ability of the Federal Court to issue an order in the nature of a Mareva injunction because it enabled the Court 'to protect its process from abuse in relation to the enforcement of its orders.' (At 619).

36 In the same proceedings, Toohey J, at 630, approved of describing permissible inherent powers as those that 'are incidental and necessary to the exercise of the jurisdiction or the powers so conferred.' (Citing with approval Parsons v Martin in the Full Federal Court of Australia (1984) 5 FCR 235 at 241.)

37 More recently, in the High Court of Australia in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennon JJ in a joint judgment had occasion to discuss the phrases 'inherent jurisdiction' and 'inherent power'. Their Honours approved of describing inherent powers as being "powers expressly or impliedly conferred by the legislation governing the court" together with "such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred." (Citing Toohey J in Harris v Caladine (citation omitted).) (See at [5]).

38 The judgment of Gleeson CJ (as his Honour then was) in the New South Wales Court of Appeal in National Parks and Wildlife v Stables Perisher (1990) 20 NSWLR 573 contains a succinct statement of principles which describe the nature and extent of the implied inherent powers of a superior court with limited jurisdiction. At 581, his Honour said, 'In the course of argument in this Court reference was made to a principle which is, no doubt, capable of being described as giving rise to an 'implied, incidental power', but which does not advance the position of the respondent in the present appeal. In Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301, Lord Morris of Borth-y-Gest said: "There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process." This principle was referred to by McHugh JA in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476, where his Honour said: "… The source of this inherent jurisdiction is the implied authority conferred on the judiciary to uphold, protect and fulfil the judicial function by ensuring that justice is administered, both in a particular case and as a continuing process, according to law and in an effective manner: Jacob 'The Inherent Jurisdiction of the Court' Current Legal Problems (1970) 23 at 27-28." (See also Jago v District Court of New South Wales (1989) 168 CLR 23.)'

39 In DJL v Central Authority (2000) 201 CLR 226, the High Court of Australia had occasion to examine the power of the Full Court of the Family Court of Australia to re-open orders that it had made after entry. The principal judgment is that of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Their Honours firstly examined the circumstances by which the Family Court was created, namely the provisions of the Family Law Act 1975. That Court was created as a superior court of record. Their Honours contrasted a superior court of record created by statute with a common law superior court of record. The situation of such a court was described at [34] by their Honours in the following terms: '34 The common law courts, as superior courts of record, had "full power to rehear or review a case until judgment [was] drawn up, passed, and entered". That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation . Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court. An order also might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce. It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the court would have regard to the interests of third parties. Finally, where the business of the court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders.' (Citation references omitted)

40 By contrast, their Honours concluded that such powers as might by exercised by a statutory court were to be found in the statute or by necessary implication in connection with the exercise of jurisdiction." 22 In those proceedings, I concluded that this Court had no power to reopen final orders after they have been perfected. In doing so, I applied the High Court decision in DJL. 23 However, the circumstances of these proceedings are somewhat different. Of more relevance is the decision of the High Court of Australia in Taylor v Taylor (1978 - 1979) 143 CLR 1. Those proceedings concerned the jurisdiction and inherent powers of the Family Court of Australia to set aside orders made in the absence of parties who had not been present through no personal fault of their own but, at least in the case of one party, through the fault of his solicitors. The Family Court of Australia, like this Court, is a superior court of record limited by statute. In Taylor, the High Court held that the Family Court of Australia had inherent power to set aside the order made without reference to any provisions of the Family Law Act 1975 or any of the Rules of the Court that would found the existence of such a power. I am unable to find any provision of the Industrial Relations Act 1996 or the Rules of this Court which might be considered as a basis for the existence of such inherent power save for the provisions of Rule 36.16 of the Uniform Civil Procedure Rules 2005. I note that s 185 of the Industrial Arbitration (Special Provisions) Act 1984 permits rules to be made which apply to this Court including, in s 185(2)(e) "any matter that may be the subject of Rules under the Supreme Court Act 1970 or the Civil Procedure Act 2005." It may be possible to argue that this provision, when read in conjunction with Rule 89(5), the provisions of which I have earlier set out, would permit an argument that Rule 36.16 constitutes a specific power of this Court. Rule 36.16(1) and(2) are in the following terms. 36.16 Further power to set aside or vary judgment or order (cf SCR Part 40, rule 9) (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment, or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. 24 However, in view of the conclusion that I have reached as to the existence of an inherent power of this Court by applying by way of analogy the reasons for judgment of the High Court in Taylor, it is not necessary that I pursue this aspect of the matter further. 25 In Taylor, Gibbs J (as his Honour then was) cited with approval the following observation of Griffiths CJ in Woods v Sheriff of Queensland (1895) 6 QLJ at 164. "When an order is made ex parte, the court or judge making it may, upon application of any person prejudicially affected by the order, review and, if necessary, discharge it. This is a rule of natural justice. But, when a judgment or order is pronounced or made after hearing both sides, it is a general rule that the court which pronounced the judgment or made the order cannot reverse or vary it." 26 After referring to authority, his Honour concluded that since one of the parties had as a matter of fact not received any notice of the hearing of a matter, the Family Court of Australia had an inherent power to set that order aside, emphasising however that the power was a discretionary one. His Honour also held that the Family Court should have set the order aside on the basis that the non-appearance of the party was caused by the fault of his solicitor and was not the fault of the party personally. Stephen J agreed in the judgment of Gibbs J. 27 Mason J also concluded that although the Family Court was created by statute, "…it none the less possesses an inherent jurisdiction to set aside a judgment obtained by default…In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party…but to the setting aside of a default or ex parte judgment obtained when the absence of the party is due to no fault on his part…" (At 16). Aickin J agreed with the judgment of Mason J. 28 Murphy J, although dissenting as to the ultimate outcome of the proceedings, concluded that the Family Court of Australia had the requisite inherent power to set aside the order made in the circumstances of those proceedings. However, his Honour commented, "The discretion to reopen should be applied only with caution. Factors to be considered are the presence or absence of some real explanation for failure to use the opportunity to be heard, delay, acquiescence, prejudice to the other party." (At 21) 29 I conclude that, on the basis of the reasoning in Taylor and accepting that the circumstances which apply to this Court are relevantly analogous to that of the Family Court of Australia, this Court has inherent power to set aside the orders which I made, albeit that I have concluded that they have been perfected. Should the discretion to set aside the orders be exercised - the factual background

30 It is necessary to set out the factual matrix against which the decision whether to set aside the orders should be made. 31 As I have earlier indicated, the summons in these proceedings was filed on 12 December 2006. The respondents did not file a reply until 17 April 2007. The matter was further delayed by the filing of a response to that reply by the applicant on 10 August 2007. 32 A conciliation hearing was commenced before Justice Kavanagh on 24 September 2007. It was stood over until 7 December 2007 for the purpose of allowing certain records to be made available, but on that day neither the applicant nor his solicitor was present to instruct counsel. The applicant informed his counsel by telephone that he had not been told of the adjourned conciliation hearing although the date was clearly fixed by Justice Kavanagh on 24 September 2007. The conciliation resumed on 29 January 2008, was stood over for further conciliation to 12 February 2008, was again dealt with by her Honour on 21 February 2008 and finally concluded on 3 March 2008 when it had become clear that the matter would not resolve. 33 Justice Kavanagh made directions that the applicant file any amended summons by 17 March 2008, that the respondent file any objection to any amendment by 31 March 2008 and that the applicant was to file and serve his affidavits in chief by 28 April 2008. 34 The matter came on for call-over before Justice Staff on 23 May 2008. On that occasion, Mr Foley, solicitor for the applicant, said that his affidavits in chief would be filed within 28 days. There was a mention made during the proceedings that day of concurrent proceedings in the District Court between the respondents and the applicant's wife. 35 Justice Staff asked Mr Foley why the applicant had not complied with the directions made on 3 March to file his affidavits in chief by 28 April. Mr Foley said that he was not aware of any such directions being made. Thereupon Justice Staff ordered that the applicant file and serve his affidavit material in chief by 27 June 2008 and the proceedings were adjourned on that basis. 36 Thereafter, the matter was mentioned before the Deputy Industrial Registrar on 17 July 2008. The applicant was ordered to file his affidavits in chief by 28 August 2008. The matter again came on for hearing before the Deputy Industrial Registrar on 11 September 2008. The applicant still had not filed his affidavits in chief and was ordered to do so by 10 October 2008. Thereafter, on 17 October 2008, the first and second respondents filed the motion seeking, inter alia, that the summons be struck out, to which I have earlier referred. 37 Evidence by the solicitor for the respondents was that at no time during the course of the proceedings has either the applicant or his solicitor advised her that he would be unable to comply with the directions of the Court concerning the filing of his affidavit evidence in chief nor has he sought the indulgence of the Court prior to the expiry of the time limited for the filing of that evidence given by court order. 38 Some explanations were proffered by and on behalf of the applicant during the course of the hearing of this motion. 39 The applicant swore an affidavit on 14 November 2008 in which he explained his inability to comply with the directions as being "through a series of unfortunate events." These included extreme financial pressure that he and his wife experienced after he was "effectively sacked" by the respondents in July 2006 that, it was said, included an inability to service a mortgage on the family home. The home has been sold and any sale proceeds in excess of monies owing to a first mortgagee have been paid to a company, which, he says, is controlled by the first and second respondents pursuant to a loan associated with his involvement with them. It was said that that company commenced proceedings against his wife in the District Court of New South Wales, which ultimately were not defended. The financial difficulties created an inability to adequately provide for the five children of the marriage aged between 19 and 9. There has been resultant stress on the applicant, his wife and his children exacerbated by the death of his wife's father on 3 March 2008. Furthermore, he says that he and his wife suffer from a number of medical conditions and that he suffers from depression, as did his wife for a period after the death of her father. 40 An affidavit of Michael Joseph Lawler, sworn 4 November 2008, states that he is a friend of the applicant and has endeavoured to assist him in the preparation of his case. Mr Lawler introduced the applicant to Mr Foley, who agreed to act for the applicant, "on the basis that he did not have the time to undertake the preparation personally and would depend upon the applicant, with my assistance, in doing most of the necessary preparation." 41 Mr Lawler further says, "I am aware that the applicant has failed on several occasions to file evidence in accordance with directions of the Court. I bear a measure of practical responsibility for this state of affairs because I have repeatedly promised the applicant that I would find the time to sit down with him and help in the preparation of affidavits but have repeatedly cancelled or postponed meetings because of my own work and family commitments. In short, I let the applicant down. If I had done what I had promised to do, and subject to an issue around proper production of documents by the respondents, the applicant's affidavits would have been prepared many months ago." 42 Mr Lawler indicated that he had assisted the applicant in completing a draft affidavit which process was complete on 12 October 2007. 43 I should state that Mr Lawler is known to me in his capacity as a Vice-President of the Australian Industrial Relations Commission, of which Tribunal I am a dual appointee member. The parties were advised of this and neither party has raised this ground as one that would give rise to an application that I recuse myself from further hearing the matter. Nor do I, for my part, consider that I should do so. 44 Mr Michael David Foley, the applicant's solicitor on the record, in an affidavit sworn 13 November 2008, indicated that in effect he took no part in the preparation of the applicant's affidavit and was reliant upon the applicant to do so, presumably with the assistance of Mr Lawler. He said that he discussed the contents of the applicant's affidavit with him at length on 8 October 2008. He said "I have been promised the draft of the affidavit for some months and nothing had been forthcoming." He received some material from the applicant on 9 October 2008 and thereafter commenced to prepare and type up the affidavit. He received another version of the affidavit from Mr Lawler on 13 October 2008 but his other client commitments precluded him from attending to the preparation of the affidavit for some time. 45 Mr Foley complained that the listing of the notice of motion on 29 October 2008 had been advised to him by telephone and that initial listing dates had been changed. He conceded, however, that he had received a telephone call and agreed to the matter being listed on 29 October 2008 but failed to make a note of that date in his diary or advise the applicant of that date. Although he conceded that he had received an earlier copy of a notice of hearing, served by facsimile transmission from the Registrar of this Court, he made no mention in his affidavit of receipt of a further notice of hearing which, as I have earlier stated, was forwarded to his facsimile number by the office of the Registrar on 21 October 2008. The copy in the Court file contains a print out indicating that the transmission to Mr Foley's facsimile number was concluded successfully. 46 There is annexed to Mr Foley's affidavit the applicant's affidavit in chief, which he proposes to file in the proceedings. Discretionary matters

47 There are a number of matters that I take into account in determining whether to grant the relief sought by the applicant in these proceedings: 1. There can be no doubt that the applicant has failed on three occasions to comply with orders of this Court to file his evidence in chief. His failure on each occasion was not accompanied by any explanation nor did he attempt on any of those three occasions to seek the indulgence of the respondents or the Court to meet any difficulty. Indeed, no explanation was sought to be given until after the proceedings had been struck out. The applicant's failure may be characterised as persistent and contumelious. 2. The applicant personally has offered a number of explanations which are not corroborated in any way, especially in terms of the medical conditions upon which he seeks to rely and in terms of the circumstances of his wife and family. 3. The reality is that the applicant is entirely dependent upon the good offices of Mr Lawler in assisting him in the preparation of his case and that Mr Lawler has let him down. Furthermore, his solicitor, Mr Foley, appears to have accepted a retainer on the basis that he would have minimal involvement in the preparation of the case and presumably has afforded to the applicant some considerable latitude with respect to his own fees. Mr Foley has clearly failed to make a notation of the date fixed for hearing on 29 October last and has failed to advise the applicant of the hearing date. Whatever the basis of his retainer, one must question Mr Foley's attention to his obligations to the applicant in this regard. 4. On the other hand, whilst there has been a failure to file the affidavit evidence in chief over a period of, now, nine months, this is by no means a "worst case" scenario and may not constitute, in all the circumstances, such a delay as would warrant the proceedings being struck out, particularly in circumstances where the applicant would then be time-barred from instituting fresh proceedings by reasons of the provisions of s 108B of the Industrial Relations Act 1996. 5. There is no evidence that the respondents would suffer any particular prejudice in and about the preparation of the proceedings for hearing or in connection with the hearing of the proceedings if the earlier order were revoked. 48 In determining whether to exercise discretion in favour of the applicant in these proceedings, I take into account all of the above matters. The determination obviously involves a consideration of the circumstances and a balancing of the competing situations of the applicant and the respondents. Whilst I have a great deal of sympathy for the position of the respondents and whilst the Court cannot condone the repeated and contumelious breaches by the applicant of the directions of the Court, particularly having regard to the authority of the Court, on balance I am persuaded to revoke the earlier order made by me on 29 October 2008, striking the summons out, but on strict conditions as to the payment of costs and requiring compliance with a timetable which, in the first instance, will require the applicant to file all of the evidence upon which he wishes to rely in chief within a short period of time, coupled with a sanction that the proceedings be dismissed if he fails to do so. Orders

49 I make the following orders: 1. I revoke the orders made by me on 29 October 2008. 2. The applicant is directed to file and serve all affidavit material in chief other than expert evidence by no later than 4pm on 24 December 2008 and if he fails to do so the proceedings will stand dismissed. 3. The applicant is to pay the respondents' costs of the proceedings heard on 29 October 2008 and of these proceedings in an amount assessed under the Legal Profession Act 2004 in default of agreement.

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Cases Cited (10)