Industrial Relations Commission of New South Wales in Court Session CITATION : Nclue Investments Pty Limited & Anor v G3 Communications Pty Limited & Anor [2002] NSWIRComm 90 NCLUE INVESTMENTS PTY LIMITED ACN 081 917 473 First Applicant GLENN CHRISTENSEN Second Applicant PARTIES : G3 COMMUNICATIONS PTY LIMITED ACN 077 771 121 (Administrators Appointed) First Respondent AUSTRALIAN AUTHORISED INVESTMENTS LIMITED ACN 006 715 091 Second Respondent FILE NUMBER: IRC 4855 of 1999 CORAM: Schmidt J CATCHWORDS : Unfair contract - adjournment of hearing sought - adjournment opposed - second respondent not frank as to its financial position - failure to approach Court when problems arose - failure to put on material - failure to advise other side of difficulties - failure to adhere to the undertakings given to the Court as to costs - adjournment declined LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 HEARING DATES: 04/22/2002 EXTEMPORE JUDGMENT DATE : 04/22/2002 APPLICANTS: Mr J Phillips of counsel SOLICITORS: Rockliffs Solicitors LEGAL REPRESENTATIVES: APPLICANTS: Mr R Killalea of counsel SOLICITORS: Ian D Graham & Associates JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 22 April 2002 MATTER NUMBER IRC 4855 OF 1999 NCLUE INVESTMENTS PTY LIMITED AND ANOR v G3 COMMUNICATIONS PTY LIMITED AND ANOR Application under section 106 of the Industrial Relations Act 1996 REASONS FOR DECISION (Extempore) 1 In this case I have decided not to adjourn the hearing of the merits for these reasons. 2 On 13 September, after a notice of motion was filed by the second respondent seeking dismissal of the application for jurisdictional and other reasons, the hearing of the matter was adjourned. That occurred in order to enable the second respondent to put on further evidence. Various costs orders were then made and the proceedings were adjourned to enable further affidavit evidence to be put on. Thereafter, the second respondent filed no affidavits and did not approach the Court in order to have the arrangements then made varied. 3 The reasons for that circumstance were explained at today's hearing, as being that the company was financially unable to do so. The evidence led today demonstrated that the company was not frank as to its financial position at the September hearing. This was surprising, particularly given Mr Pike's evidence today that the second respondent has not traded for over two years and that it did not have the means to put on its evidence at that time in September or thereafter. 4 Today the second respondent sought to move on a further notice of motion and a notice of objection to competency each raising jurisdictional matters. It also sought an adjournment of the hearing of the merits until a number of jurisdictional points which it now seeks to press could be heard and determined. This proposal was advanced in circumstances where s78B notices had been given in relation to a s109 point which had arisen in the interim. 5 There was no objection by the applicants to the jurisdictional point being adjourned until Wednesday next. An objection to the adjournment of the hearing of the merits was, however, pressed. Mr Pike, the director of the second respondent throughout the relevant time was called to give evidence of the company's financial difficulties, which it asserted had precluded it from filing its evidentiary material. 6 As I have said, this evidence demonstrated that the second respondent had not been frank with the Court as to its financial position last September. The evidence also demonstrated that the second respondent failed to approach the Court when those problems became further apparent to it and that it did not approach the Court once the financial means to put on its affidavit material became available to it. 7 The second respondent neither approached the Court, nor put on the material, nor approached the other side in order to appraise them of the circumstances. Indeed, nothing was done in reality until 16 April when the jurisdictional material earlier referred to was filed and served and the s78B notices were given. 8 The question which arose in all those circumstances was whether the hearing of the merits of the case could properly be adjourned, effectively for the fourth time, in order to again accommodate the second respondent's difficulties. 9 On 13 September the second respondent relied upon what the High Court said in the State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, where it was emphasised that case management should not detract a Court from doing justice between the parties. The view taken in September was that costs in those circumstances could address the difficulties then being visited upon the applicants. The adjournment was only then granted, having in mind various undertakings then given as to costs, and on the basis of which cost orders were made in favour of the applicants. 10 It has become apparent today in submissions made in reply for the second respondent that the second respondent has not adhered to the undertakings which it gave the Court in September as to costs. The question which thus arises is whether costs orders can now, in all these circumstances, similarly accommodate what justice between the parties now requires. 11 I am very troubled about the history of this matter and the impact which it has had upon the applicants. Whatever decision is made, the case may likely not conclude within the time fixed. Issues of jurisdiction are raised which obviously require determination. Note has to be taken, however, that jurisdictional issues were alluded to in the notice of motion which the respondents filed in September last. That the second respondent in those circumstances has conducted itself in the manner I have described is unfortunate, particularly when it is recalled that the proceedings in September concluded with this statement: "The parties will have liberty to approach and to have the matter restored to the list for further directions if required. I would expect, and I want it plainly understood, that there would be no further departure by the respondent from the Court's directions and orders, unless consent to that course is obtained from the applicant, or the Court is approached. It seems extraordinary that this should have to be said but I think it does." 12 The circumstances revealed today have led me to the view that it would not do justice as between the parties to yet again adjourn this hearing in order to accommodate the second respondent's failures. I am not satisfied that costs orders can address the current difficulties. For these reasons, I decline to adjourn the hearing on the merits of the matter. ------------------------ 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.