Stanmore v Australian Taxation Office [1996] IRCA 347

DECISION NO: 347/96 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 1209 of 1996 PHILIP STANMORE Applicant AUSTRALIAN TAXATION OFFICE Respondent Coram: Judicial Registrar Linkenbagh Place: Sydney Date: 2 July 1996 REASONS FOR JUDGMENT Delivered ex tempore and revised from the transcript These proceedings come before me this morning on a Notice of Motion filed by the applicant on 14 June 1996 in which he seeks Orders that the Order of the Registrar on 9 April 1996 dismissing the application be vacated and that the matter be listed for hearing. In support of the Notice of Motion the applicant has filed an affidavit which does not bear the date of swearing but was filed in the Registry on 14 June 1996. The applicant gave oral evidence to supplement the material contained in his affidavit.

The relevant Rule is Order 35 Rule 7 which provides in subparagraph (1) that the Court may vary or set aside a judgment or Order before it has been entered. The relevant Rule is subparagraph (1) of Order 35 Rule 7 as the Order in this case has not been entered. The principles upon which a Court sets aside an Order are well established and require the Court, where the Order was made in the absence of a party, primarily to look to the reasons for which the party was not present on the day that the Order was made and also require the Court in the interests of justice and balancing the interests of the parties, to consider whether the case for the party moving to set aside the Order has any prospects of success on a prima facie basis.

In this case, the applicant swore in his affidavit that he moved from his address at 34 Alleyne Street, Chatswood, to 66 Garden Grove Parade, Adamstown, and I quote, "on approximately March 1996". In his oral evidence today he gave his residential address as 4/71 Probert Street, Newtown and he informed me that he moved to that address in March of 1996. The residential address of the applicant shown on the application filed in the Australian Industrial Relations Commission on 29 January 1996 is 34 Alleyne Street, Chatswood. The Court file reveals no change in that residential address up to the filing on 14 June 1996 of the Notice of Motion and affidavit to which I have already referred. The Form 132 which is the originating process in the Commission was signed by Ivan Rogers as Divisional Organiser of the Community and Public Sector Union and was filed by him on behalf of the applicant.