Industrial Relations Commission of New South Wales in Court Session CITATION : Della v L and W Developments Pty Ltd and anor [2004] NSWIRComm 149 APPLICANT Alain Della PARTIES : FIRST RESPONDENT L and W Developments Pty Ltd SECOND RESPONDENT Peter Li FILE NUMBER: 8168 of 2001 CORAM: Marks J LEGISLATION CITED : Industrial Relations Act 1996 s106 CASES CITED : Comdel Commodities v Siporex Trade 1997 (Volume 1) Lloyds LR 424 HEARING DATES: 05/21/2004 EXTEMPORE JUDGMENT DATE : 05/21/2004 APPLICANT Mr A Della LEGAL REPRESENTATIVES: RESPONDENTS Mr Wheelhouse SC Solicitor: Mr C A Gye Gye Associates Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Friday 21 May 2004 Matter No IRC 8168 of 2001 ALAIN DELLA v L AND W DEVELOPMENTS PTY LTD AND ANOR Application under s 106 of the Industrial Relations Act 1996 EXTEMPORE JUDGMENT NSWIRComm 149 1 These are proceedings which were commenced originally by summons in this Court filed on 10 December 2001 in which the applicant, Alain Della, seeks certain relief against the respondents, L and W Development Pty Limited, Peter Lee and Roseley Enterprises Pty Limited pursuant to s106 of the Industrial Relations Act 1996 ("the Act"). 2 On 14 December 2001 I made orders in the nature of a Mareva injunction which had the effect of precluding the respondents from disbursing certain moneys being the proceeds of the sale of certain parts of a home unit development. It is that home unit development which forms the essence of these proceedings in terms of the role of the applicant in connection with the development and allegations of unfairness arising out of the conduct which the applicant alleges against the respondents in connection with the development and the payment, or failure to pay certain moneys to him. 3 The respondents filed a Notice of Motion on 29 March 2004 seeking the discharge of those orders made on 14 December 2001. The basis for the motion is the asserted failure of the applicant to duly prosecute these proceedings in an appropriate fashion, including a timely fashion. The respondents complain of three particular areas where it is said that the applicant has so failed. The first is a failure to put on any affidavit material in reply to affidavits filed on behalf of the respondents, the last of which was filed in March 2003. The second is said to be the failure of the applicant to reply to proceedings in the nature of a cross-summons in this Court which failure is said to date from April 2003. That failure is directed specifically to the failure to file a reply document as required by the rules of this Court. The third is said to be a failure to give discovery of certain documents which the respondents assert are discoverable and that that failure has occurred since at least September 2003. 5 The applicant now appears in person, those legal practitioners having previously represented him having filed a notice of ceasing to act or otherwise no longer representing the applicant. The applicant responds in particular by asserting that the respondents have failed in particular ways to attend to certain matters which would allow the proceedings to continue in an expeditious manner, and complains also that the respondents or at least one of them has commenced proceedings against him in the Equity Division of the Supreme Court of New South Wales arising out of the same subject matter as these proceedings, namely arising out of the circumstances of the home unit development to which I have previously referred. 6 The principles upon which this application should be considered are conveniently summarised in a decision of the English Court of Appeal in Comdel Commodities v Siporex Trade 1997 (Volume 1) Lloyds LR 424 which Mr Wheelhouse SC of counsel who appears for the respondents in support of the Notice of Motion has referred me to. That case is authority for a proposition which in any event I would have thought is obvious, namely that a litigant who obtains the benefit of an order in the nature of a Mareva injunction has an obligation to prosecute the proceedings in which he, she, or it is involved in a diligent and appropriate manner. 7 Having regard to the failures alleged by the respondents and which I uphold as having been established I am of the opinion that the respondents have satisfied the onus of demonstrating that the applicant has failed to prosecute these proceedings in an appropriate and timely fashion, or at least in a fashion which would allow him to resist the discharge of the order which has previously been granted. 8 I should add that the proceedings have been allocated to me since their inception either by way of conciliation or as the directions judge in terms of the case management process and that I have a great deal of familiarity with all that has occurred in connection with these proceedings. Whilst I am not necessarily critical of the applicant in a personal sense because I appreciate that changes in legal representation and the necessity to deal with concurrent proceedings in another court may provide a distraction; nevertheless there is an obligation imposed on the applicant, as I have indicated, to prosecute these proceedings in a timely and effective manner and unfortunately he has, in my opinion, failed to do so. 9 For these reasons I uphold the respondent's submissions and I hereby dissolve the orders made by me on 14 December 2001. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.