McCausland and Another v Surfing Hardware International Holdings Pty Limited and Others [2007] NSWIRComm 322 (11 December 2007)

Last Updated: 22 February 2008

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : McCausland and Another v Surfing Hardware International Holdings Pty Limited and Others [2007] NSWIRComm 322



FILE NUMBER(S): IRC 5174 of 2004 and 4589

HEARING DATE(S):

EX TEMPORE DATE: 11 December 2007
PARTIES:
APPLICANTS:
William McCausland
Yvonne McCausland

RESPONDENTS:
Surfing International Holdings Pty Ltd
SHI Holdings Pty Limited
Surf Hardware International Pty Limited
Timonthy Bosher
Timonthy Ford

CORAM: Backman J


CATCHWORDS:

LEGAL REPRESENTATIVES

APPLICANTS:
Mr P Newall of counsel
Dunstan Legal
(Mr G Dunstan)
RESPONDENTS:
Mr S Jauncey
Henry Davis York Lawyers


CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996



JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: BACKMAN J

Tuesday, 11 December 2007

Matter No IRC 5174 of 2004

William McCausland v Surfing Hardware International Holdings Pty Limited and Ors

Application under section 106 of the Industrial Relations Act 1996


Matter No IRC 4589 of 2005

Yvonne McCausland v Surfing Hardware International Holdings Pty Limited and Ors

Application under section 106 of the Industrial Relations Act 1996

JUDGMENT

[2007] NSWIRComm 322

1 In these matters, William McCausland, by way of notice of motion filed 7 December 2007, and Yvonne McCausland, by way of notice of motion filed on the same day (the applicants), seek a stay of proceedings for a specified period of three months and seven days.

2 In addition the applicant, William McCausland, seeks two further contingency orders set out in his notice of motion as follows:

2. That if, at the expiration of the said period of three months from the date of making this order, the applicant wishes to apply for an extension of the stay, that the applicant have leave to restore the matter on three days notice and file any further evidence in support of such extension, provided this is done prior to the expiration of the stay in order number 1 hereof.

3. That if the applicant applies for a further stay of proceedings in accordance with order number 2 hereof, the proceedings will be stayed until the application for further extension is determined by the Court.

3 The basis of the stay has been set out in an accompanying affidavit of Gregory John Dunstan filed 7 December 2007. Mr Dunstan's affidavit annexes a copy of a medical report prepared by Dr Alan Garrity dated 6 December 2007. Dr Garrity has been the applicant's treating psychiatrist since 23 December 2003. In the report Dr Garrity states that William McCausland:

First presented with depression in around December 2003 and he is currently on lexapro and is having monthly psychiatric contact.

The report also states that Mr McCausland's mood has generally been better when there have been long gaps between court appearances and deadlines and suggests, that were Mr McCausland to persist with legal proceedings, Dr Garrity would be concerned about his ability to handle the stresses involved. The report concludes that a respite from the legal process would facilitate the management of Mr McCausland's depression.

4 The respondent does not consent to the notice of motion orders sought but suggests that an alternative course may be that both matters are set down for a directions hearing some time in March in the new year.

5 These matters have had a long history. They have been the subject of no less than six Full Bench decisions in this jurisdiction and two first instance decisions. The summonses for relief were filed on 27 August 2004 on behalf of William McCausland and 4 September 2005 on behalf of Yvonne McCausland. The matters have travelled together at least since the appeal process was commenced. It is anticipated that both applications under section 106 of the Industrial Relations Act 1996 will be heard together. The parties have indicated to the Court that the hearings with regard to both applications are likely to take somewhere in the vicinity of 10 days. The first available hearing dates to accommodate both matters and the anticipated duration of those matters is not until some time after 19 May 2008. There is, therefore, no immediate prejudice to the respondent with regard to the period requested for the stay of proceedings by both William and Yvonne McCausland in their respective notices of motion.

6 In addition Dr Garrity's report suggests, as earlier observed, that a respite from the current legal proceedings will facilitate the management of Mr McCausland's depression. Dr Garrity has nominated a three month respite period subject to review.

7 I propose to specify a date for a directions hearing at the expiration of the period requested by the applicants for a stay, that is a period of three months and seven days. The orders I intend to make will be that both matters are stood over until that particular date. I also intend to make some orders as to the further progress of the matters in terms of the timetable for the filing and serving of evidence by the respondent and any filing and serving of evidence by the applicants in reply. However, I intend to direct that a return date for the filing and serving of evidence by the respondent not be until the proposed directions hearing dates in relation to both applicants, that is 18 March 2008. (The Court was advised by Mr Newall, counsel for the applicants, that evidence has been filed on their behalf.)

8 The Court makes the following orders:

1. Matter numbers IRC 4589 of 2005, Yvonne McCausland, and IRC 5174 of 2004, William McCausland, be stood over for directions hearings until 18 March 2008 at 9.30 am.

2. The respondents are to prepare and file their evidence in respect of both applications by 18 March 2008.

3. The applicants are to file and serve any evidence in reply to the respondents' evidence by 31 March 2008.

4. The notices of motion in relation to both matters are otherwise dismissed.

LAST UPDATED: 14 February 2008