Industrial Relations Commission of New South Wales in Court Session CITATION : Lambert v Australian Business On-Line Pty Ltd [2000] NSWIRComm 271 APPLICANT Keith Anthony Lambert PARTIES : RESPONDENT Australian Business On-Line Pty Limited FILE NUMBER: IRC3692 of 1998 CORAM: Peterson J CATCHWORDS : Unfair contract - intention to settle by deed of release - early consent to draft deed - inability to make further contact with the applicant - deed gave effect to the terms of settlement notwithstanding its draft state - notice of motion - proceedings dismissed. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 01/14/1999; 02/11/1999; 02/25/1999; 03/11/1999; 03/25/1999; 04/22/1999; 06/03/1999; 07/01/1999; 08/12/1999; 09/09/1999; 11/04/1999; 12/02/1999; 12/16/1999; 02/14/2000; 03/13/2000; 05/15/2000; 06/05/2000 DATE OF JUDGMENT: 12/15/2000 APPLICANT Dibbs Crowther & Osborne Solicitors SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT Mr P Hayward Haywards Solicitors. SYDNEY. JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 15 DECEMBER 2000 Matter No. IRC3692 of 1998 KEITH ANTHONY LAMBERT v AUSTRALIAN BUSINESS ON-LINE PTY LIMITED Application under s106 of the Industrial Relations Act 1996 JUDGMENT RE NOTICE OF MOTION 1 The applicant, Keith Anthony Lambert, commenced proceedings against the respondent, Australian Business On-Line Pty Limited, on 7 July 1998 seeking relief under s106 of the Industrial Relations Act 1996. 2 Following a series of mentions of the matter before the Registrar the matter was settled between the parties by the respondent acceding to a proposal of the applicant that the proceedings be withdrawn with no order being made as to costs. The respondent's acceptance of the proposal was subject to the execution by the applicant of a deed of release. On 14 April 1999 Mr Hayward of Haywards Solicitors, acting for the respondent, forwarded a draft deed of release to the applicant's solicitors. 3 On 10 December 1999 the solicitors acting for the applicant filed a notice of ceasing to act as solicitor; that notice indicated the applicant's last known address for correspondence to be PO Box 900, Neutral Bay NSW 2089. 4 On 14 December 1999 the applicant delivered to Mr Hayward the draft deed of release executed and amended in two inconsequential respects. The draft deed was forwarded to the respondent for execution, it being considered that the draft gave effect to the terms of settlement notwithstanding its draft state. 5 In early January 2000 Haywards' received from the respondent the draft deed but with a significant amendment made thereto. 6 On 31 January 2000 Mr Hayward e-mailed the applicant indicating that alterations had been made and that the applicant was required to initial the deed of release. He was asked to contact Mr Hayward. 7 On 11 February 2000, no response having been received, the applicant was e-mailed again seeking a reply. On 15 February 2000 an e-mail was received from the applicant in Hong Kong, who explained it would be difficult to change the deed of release and asked why it was necessary to make any change at all. On 16 February 2000 the applicant e-mailed Mr Hayward to the effect that he would be back in Australia in two weeks and would then contact him to initial the changes to the deed. This e-mail is in evidence. No contact was made thereafter by the applicant. 8 The Registrar subsequently directed the respondent to put on a notice of motion for dismissal of the matter. It is that motion with which this interlocutory judgment is concerned. Service on the applicant of a copy of the notice of motion and an affidavit in support thereof has been attempted unsuccessfully. All attempts to make further contact with the applicant between 16 February and 30 August 2000 failed. 9 The motion seeks orders that: 1. The proceedings be dismissed; and 2. No order as to costs. 10 I am satisfied having regard to the material contained in the affidavit in support of the notice of motion, (sworn 29 June 2000) and the further affidavit filed in support of the matter by Mr Hayward (sworn 30 August 2000) that it is appropriate to make the orders sought. The evidence establishes to my satisfaction that the parties have resolved the matter on the basis that the proceedings should be brought to an end with no order as to costs. I pay particular regard to the e-mail messages exchanged by the applicant and Mr Hayward's office including the message that he would be willing to initial the changes. The inability of the respondent to make further contact with the applicant makes it necessary that the proceedings be discontinued by order. I therefore make the following orders: 1. The proceedings are dismissed. 2. No order as to costs. 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.