Noakes and anor v Adams and anor (supplemental) [2005] NSWIRComm 107 (13 April 2005)

Last Updated: 14 April 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Noakes and anor v Adams and anor (supplemental) [2005] NSWIRComm 107

FILE NUMBER(S): 1603

HEARING DATE(S): 01/04/2005

DECISION DATE: 13/04/2005

PARTIES:

FIRST APPLICANT

Paul Anthony Noakes

SECOND APPLICANT

Fiona Gai Noakes

FIRST RESPONDENT

Tony Adams

SECOND RESPONDENT

Ellen May Adams

JUDGMENT OF: Marks J

LEGAL REPRESENTATIVES

APPLICANT

Mr M Jacobs QC with Mr P Bambagiotti of counsel

Solicitor: Ms K Stapleton

JDK Legal

RESPONDENT

Mr R Alkadamani of counsel

Solicitor: Mr P Hayward

Haywards Solicitors

CASES CITED: Noakes and anor v Adams and anor [2005] NSWIRComm 48

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 2 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: MARKS J

Wednesday 13 April 2005

Matter No IRC 1603 of 2001

PAUL ANTHONY NOAKES AND ANOR v TONY ADAMS AND ANOR

Application under s 106 of the Industrial Relations Act 1996

SUPPLEMENTARY INTERLOCUTORY JUDGMENT

[2005] NSWIRComm 107

1 I delivered judgment in these proceedings on 14 March 2005 (Noakes and anor v Adams and anor [2005] NSWIRComm 48). As set out in that judgment, I dealt with a motion by the applicants to amend the summons, which was resisted by the respondents on jurisdictional grounds. There were before me concurrently two other motions, one of which dealt with particulars and which, by consent, was stood over. The third motion was a strike-out application brought by the respondents, asserting that this Court lacked jurisdiction and power with respect to the proceedings. As was clear from my interlocutory judgment, it was based on submissions and counter-submissions made by the parties concerning the jurisdiction and power of this Court under s 106 of the Industrial Relations Act 1996 with respect to the proceedings, on the basis that they were constituted by the proposed amended summons.

2 At the conclusion of my judgment I ordered that the respondents' notice of motion, seeking to preclude the applicants from filing a proposed further amended summons, should be dismissed. At a directions hearing on 1 April 2005, Mr M Jacobs QC, who together with Mr P Bambagiotti of counsel appeared for the respondents, submitted that I should not have dismissed the respondents' motion to preclude the applicants from seeking to amend the summons, but that I should have instead granted leave to the applicants to amend the summons as sought, thereby dismissing the respondents' arguments based on jurisdiction and power with respect to the proposed form of amended summons. Mr Jacobs submitted that this approach was necessary because the respondents wished to preserve their rights to further attack the proceedings by reference to the form of the amended summons once the applicants had furnished certain particulars.

3 Mr Alkadamani of counsel, appearing for the applicants, submitted that I should not accede to this request because, in essence, I had dealt with all of the submissions made by the respondents going to jurisdiction by reference to the proposed amended summons.

4 I regard the debate as somewhat academic because the respondents can never be finally shut-out of the ability to raise argument based on jurisdiction and power at any interlocutory stage of the proceedings (assuming that there are changed circumstances) or during the course of the substantive proceedings. However, to clarify the position, I propose to formally order what was implicit in my earlier judgment, namely that the applicants be granted leave to amend the summons in the form attached to the applicants' notice of motion filed 4 November 2004.

5 I see no reason to otherwise vary the orders made in my earlier interlocutory judgment of 14 March 2005 for the reasons set out above.

6 ORDERS

1. Leave is granted to the applicants to amend the proceedings in the form of the amended summons, the subject of the applicants' notice of motion filed on 4 November 2004.

2. Costs are reserved.

3. Liberty to apply with respect to costs.

LAST UPDATED: 13/04/2005