Industrial Relations Commission of New South Wales in Court Session CITATION : Borain v Swan Services Pty Ltd [2004] NSWIRComm 137 APPLICANT Peter Borain FIRST RESPONDENT Swan Services Pty Ltd PARTIES : SECOND RESPONDENT Robert John Swan THIRD RESPONDENT Judy Koch FILE NUMBER: 3214 of 2002 CORAM: Marks J LEGISLATION CITED : Industrial Relations Act 1996 s 106 HEARING DATES: 05/12/2004 EXTEMPORE JUDGMENT DATE : 05/12/2004 APPLICANT No appearance LEGAL REPRESENTATIVES: RESPONDENTS Ms Ronalds JUDGMENT: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Wednesday 12 May 2004 Matter No IRC 3214 of 2002 PETER BORAIN v SWAN SERVICES PTY LTD AND ORS Application under s 106 of the Industrial Relations Act 1996 EXTEMPORE JUDGMENT 1 In these proceedings the applicant Peter Borain seeks certain relief against three named respondents under s 106 of the Industrial Relations Act 1996. The proceedings were commenced by summons filed on 5 June 2002. They were the subject of a compulsory conciliation process, and thereafter the proceedings became the subject of the court's case management process, and, in particular, the subject of orders made on 17 June 2003. Those orders required, inter alia, that the applicant file and serve affidavits in reply to the respondents' affidavits 14 days after the filing of those latter affidavits. The respondents' affidavits in reply were in fact filed on or about 8 October 2003. Since that time the applicant has not filed any affidavit material in reply, nor has the applicant taken any further steps in the proceedings, including the service of a list of documents and other matters which were the subject of court orders made on 17 June 2003. 2 The applicant's former solicitor Messrs Clayton Utz filed a notice of ceasing to act. 3 The respondents filed a notice of motion on 20 April 2004 seeking that the proceedings be dismissed for want of prosecution. The notice of motion was sought to be served on the applicant by express post at the last known address of the applicant. This is an address which is disclosed in an affidavit filed by him on 15 August 2003, being an address in Elwood, Victoria. The circumstances in which the envelope addressed to the applicant at that address was posted was the subject of evidence by the third respondent, Judith Louise Koch, who is a solicitor. 4 Ms Koch gave evidence also of her attempts to locate the applicant through inquiries made of mutual friends and through a company search. She was unable to ascertain any address for the applicant other than that which was disclosed in his latest affidavit. Inquires made by Ms Koch of Messrs Clayton Utz as to the applicant's last known address were met with a response in appropriate terms, namely, one concerning privacy. 5 There is no obligation on respondents to proceedings in this court to locate applicants who fail to comply with orders of the court. There is, on the contrary, an obligation on applicants to keep the court informed as to their address for service of documents from time to time and as to their address for the purpose of ensuring that the case management process is undertaken in a timely fashion. It is now more than five months since the applicant has taken any steps in these proceedings and the applicant is clearly in default of the court's timetable and the orders made by the court. 6 In these circumstance, I am satisfied that the applicant has failed to prosecute the proceedings in an appropriate fashion an that it is appropriate that they be dismissed for want of prosecution. 7 The applicant's position is compounded by his failure to keep the court and the respondents informed as to his current address. Accordingly the summons is dismissed. 8 The respondents are seeking an order of costs in their favour. Such orders are contemplated by the notice of motion filed by them. 9 The applicant is to pay the respondents' costs of the proceedings in an amount assessed in default of agreement. 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.