Lincoln International Pty Ltd & Anor v Peter St James & Anor [2003] NSWIRComm 1 (3 January 2003)

Last Updated: 7 March 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Lincoln International Pty Ltd & Anor v Peter St James & Anor [2003] NSWIRComm 1

FILE NUMBER(S): IRC 3665

HEARING DATE(S): 19/12/2002

DECISION DATE: 03/01/2003

PARTIES:

FIRST APPLICANT

Lincoln International Pty Ltd

SECOND APPLICANT

Wayne Barnfield

FIRST RESPONDENT

Peter St James

SECOND RESPONDENT

Guardian Finance and Insurance Consultants Pty Ltd

JUDGMENT OF: Marks J

LEGAL REPRESENTATIVES

APPLICANTS

Mr S E J Prince of counsel

SOLICITORS

Jonathan D'Arcy & Co

RESPONDENTS

SOLICITORS

Hancocks

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: MARKS J

Friday 3 January 2003

Matter No IRC 3665 of 2001

LINCOLN FINANCE & INSURANCE CONSULTANTS PTY LTD & ANOR v ST JAMES & ANOR

Application under s 106 of the Industrial Relations Act 1996

JUDGMENT ON NOTICE OF MOTION

1 In these proceedings the applicants Lincoln International Pty Ltd and Wayne Barnfield seek certain relief against the respondents Peter St James and Guardian Finance and Insurance Consultants Pty Ltd pursuant to s 106 of the Industrial Relations Act 1996 ("the Act"). As part of the Court supervised processes leading up to the preparation of the proceedings for ultimate trial, the respondents consented to the making of orders requiring them to file and serve affidavits in reply to those filed on behalf of the applicants by 9 August 2002. When the respondents had failed to comply with this order, despite correspondence from the applicants' solicitors, the matter was listed for directions before me on 9 September 2002. On this occasion Mr Hancock solicitor for the respondents explained the delay because the applicants had delayed by three weeks the filing of their affidavit material, the affidavits were "voluminous" the first respondent was overseas at the time they were served and had then returned from overseas and that logistically the respondents were based in Queensland.

2 After hearing submissions from representatives of the parties, and having regard to the fact that the respondents had been in possession of the applicants' affidavit material since 12 July 2002 I ordered that the respondents were to file and serve all affidavit material upon which they relied by no later than 4pm 26 September. I said: "The respondents will not be permitted to rely on any affidavit material filed after that date without leave of the Court. Leave of the Court will not be given where delay is occasioned by lack of diligence and attention on the part of either the first respondent, responsible officers of the second respondent or legal practitioners retained by the respondents."

3 I also made orders requiring the respondents to answer particulars requested by the applicants within the same time frame.

4 Finally, I made an order that the respondents pay the applicants' costs of that day to be assessed under the Legal Profession Act in default of agreement and that those costs were to become payable forthwith.

5 On 28 October 2002 the applicants filed a notice of motion which is the subject of this interlocutory judgment. The applicants sought orders precluding the respondents from relying on affidavit material filed after 26 September 2002. In fact, the respondents' affidavit material was not filed until 1 October 2002. The notice of motion came on for hearing on 19 December 2002. On that occasion I asked solicitors appearing for the respondents to show cause why the respondents should be permitted to rely on the affidavit filed on 1 October 2002.

6 By way of explanation the respondents filed in Court affidavits of the first respondent and Michael Yarwood a solicitor of the Supreme Court of Queensland who is acting for the respondents, albeit that the solicitor on the record is a Mr John Hancock. I note at the outset that although the notice of motion was filed by the applicants on 28 October 2002 and presumably served a short while thereafter, the respondents did not seek to file any material until the hearing of the interlocutory proceedings commenced on 19 December 2002, and then that material consisted of affidavits sworn 17 December 2002. This seems to be a manifestation of the application of the "just in time" principle often encountered in manufacturing to the conduct of legal proceedings.

7 The affidavit of the first respondent sworn 17 December 2002 explained the delay in filing the respondents' affidavit by reference to the voluminous material contained in the applicants' affidavit, the fact that Mr St James now resides in Queensland, that he was overseas in Hong Kong during the first two weeks of September 2002 and became "extremely ill and was bed-ridden and was not able to attend to my duties as a manager of the second respondent" because of this. He said that his Queensland solicitor had finalised in hand-written form his affidavit in reply and faxed it to the Sydney solicitor representing him on 24 September 2002. Mr St James said on information and belief that the e-mail had not been received and had to be re-sent on 26 September and that this also led to a delay in the filing of the affidavit material.

8 Mr Michael Yarwood a solicitor of the Supreme Court of Queensland also swore an affidavit on 17 December 2002. He said that he had received instructions "in or about September 2002" to review the second applicant's material and that he liaised with Mr Hancock solicitor on the record for the respondents. He said that he forwarded hand-written notes by facsimile to Mr Hancock on 24 September 2002 and that he asked that Mr Hancock engross those notes into the form of an affidavit. He said that he had been informed that an e-mail transmission from Mr Hancock "was either lost and/or corrupted when forwarded to my office." It was then re-sent by facsimile on 26 September 2002. Thereafter Mr Yarwood said that he endeavoured to forward a copy of the second respondent's affidavit to the applicants' solicitor by facsimile but that the applicants' solicitor's facsimile machine malfunctioned.

9 In the course of oral evidence Mr St James gave evidence that his daughter had been ill since April and this also distracted him from attending to his business activities and attending to the preparation of an affidavit. He declined to give any details as to the nature of his daughter's illness.

10 The applicants submitted that the Court would not be satisfied that the respondents had discharged the onus of demonstrating that the time for the filing of the affidavit material should be extended.

11 In normal circumstances a delay of a few days would make no difference to the overall preparation of proceedings for hearing. The affidavit was filed some five days after the time limit in the earlier order of 9 September 2002 and the respondents' solicitors had attempted to furnish the applicants' solicitors with a copy of the affidavit before it was filed in the Court Registry. However, the respondents had already been in breach and it was this breach that had given rise to the order made on 9 September 2002. By that date it seems that the respondents' solicitors were aware that Mr St James had either returned from Hong Kong or was about to, although in fairness there is no indication that they knew that he was ill following his return to Australia from Hong Kong. Under normal circumstances one would expect that an order of the kind made on 9 September 2002 would be taken seriously, if not by litigants, at least by solicitors acting for them. In such a case, prudence would normally dictate that some more specific evidence would be given to a court other than a vague reference to an illness unspecified. In addition, if Mr St James wanted to rely on a matter which was not referred to in his affidavit in support namely his daughter's illness, it might be thought appropriate to refer to his daughter's illness with some specificity including an appropriate medical certificate. These are matters which must give cause for some misgivings concerning the explanations proffered by the respondents for the delay. These misgivings are exacerbated by the fact that affidavits in support of the extension of time were not sworn until two days prior to the further interlocutory hearing and were then filed in Court. This last minute flurry of activity has precluded the applicants from assessing what was put on behalf of the respondents and must create doubt about the intentions of the respondents in terms of the timely, effective and efficient defence of these proceedings.

12 It must be emphasised that orders made by courts in connection with case management of proceedings have, and should be regarded by parties as having a different status to a hairdresser's appointment which can be changed by arrangement. In common with most other courts, this Court is extremely busy and is required to allocate limited resources in the most efficient and effective manner in order to provide quick, efficient and cheap justice to the parties. The applicants are entitled to have the proceedings processed with limited delay. If all of the interlocutory steps in these proceedings are taken efficiently, there is a possibility that the proceedings might be heard prior to the end of 2004. The summons in these proceedings was issued on 1 June 2001. Whilst I readily concede that the delays to date have not predominantly been caused by the parties, some part of the delay has been occasioned by the inaction of the respondents.

13 In normal circumstances the respondents would be entitled to a few days grace. However such entitlement is negatived in my opinion by the failure of the respondents and their solicitors to commence preparation of the affidavit material in a timely fashion, even allowing for such unsubstantiated excuses as have been proffered on behalf of Mr St James, and by the unprofessional manner in which the respondents through their solicitors have attempted to put evidence in support of the extension of time before the Court.

14 I must state that it is my inclination that the respondents are not deserving of any extension of time. However, as against this, I acknowledge in a pragmatic sense that if I were to find against the respondents, as I would otherwise be inclined to do, the inevitable appeal whether successful or not would only have the effect of further delaying these proceedings. It is this reason, and this reason alone, that persuades me to allow the respondents to rely on the affidavit material filed on 1 October 2002, and no other material unless responding to new material raised by the applicants at some later stage in the proceedings.

15 As the necessity to seek an extension of time and the reason for the filing of the notice of motion by the applicants was caused solely by the respondents the applicants should have an order for costs in connection with these interlocutory proceedings in their favour such costs to be assessed by this Court in default of agreement. I invite assessment by the Court because I was advised during the course of the proceedings that the respondents had not satisfied the costs order previously granted and had forced the applicants to have those costs assessed by a costs assessor under the Legal Profession Act 1987. It was said that this procedure was time consuming and of itself costly and that the applicants were therefore not in a position to enforce the costs order. It is for the purpose of overcoming difficulties in this regard that I have ordered the alternative procedure. These costs when quantified are payable forthwith notwithstanding that the substantive proceedings have not been completed.

16 The notice of motion filed by the applicants also referred to outstanding particulars which had not been furnished by the respondents. The respondents were ordered to furnish such particulars during the course of the hearing on 9 September 2002 and sanctions were imposed on that occasion if the respondents failed to comply. It appears that the respondents did furnish the particulars requested, but were late in doing so. The same considerations which I have referred to above would dictate that the sanctions not be imposed. Again, a pragmatic approach dictates that the respondents should be allowed to rely on the particulars furnished, but that the costs associated with this aspect of the notice of motion should also be dealt with in the same way.

17 If, however, the applicants wish to argue that the particulars furnished are incomplete or otherwise unsatisfactory, then I grant liberty to apply for this purpose and I dispense with the filing of any formal notice of motion and affidavit in support provided that details are furnished by the applicants' solicitors to the respondents' solicitors. In any event there is general liberty to apply granted as part of the case management directions issued by the Court.

ORDERS

18 I make the following orders:

1. The respondents are entitled to rely on the affidavit material filed on 1 October 2002, but no other material without leave of the Court.

2. The respondents are to pay the applicants' costs of these interlocutory proceedings assessed by the Court in default of agreement. Such costs are payable forthwith.

3. Liberty to apply with respect to costs and the adequacy of particulars.

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LAST UPDATED: 18/02/2003