Industrial Relations Commission of New South Wales in Court Session CITATION : Jay v Colonial Services Pty Ltd [2002] NSWIRComm 66 APPLICANT Terence Douglas Jay PARTIES : RESPONDENT Colonial Services Pty Ltd FILE NUMBER: IRC 5908 of 2002 CORAM: Marks J CATCHWORDS : Case management - Consent orders breached by respondent - Failure of solicitor to give explanation - Force and effect of orders relating to case management and preparation for hearing - Costs orders made - Strict timetable set. LEGISLATION CITED : Industrial Relations Act 1996 s 106 HEARING DATES: 03/27/2002 EXTEMPORE JUDGMENT DATE : 03/27/2002 APPLICANT Mr R Reitano of counsel SOLICITORS Gilbert & Tobin LEGAL REPRESENTATIVES: RESPONDENT Mr M P Cleary of counsel SOLICITORS L E Taylor Commonwealth Bank Group JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Wednesday 27 March 2002 IRC 5908 of 2000 JAY v COLONIAL SERVICES PTY LTD Application under s 106 of the Industrial Relations Act 1996. INTERLOCUTORY JUDGMENT (EX TEMPORE) 1 These are proceedings brought under s 106 of the Industrial Relations Act 1996 by the applicant Terrence Douglas Jay against the respondent Colonial Services Pty Ltd. 2 The proceedings were commenced by summons filed in this Court on 5 December 2000. Subsequently, pursuant to the mandatory process provided for by the Court Rules the respondent through its solicitor L E Taylor filed a reply to the summons. This occurred on 14 February 2001. That document was followed by a response filed by the applicant under the Court Rules which led to a conciliation of the matter conducted before me on 7 September 2001. It may reasonably be assumed that the parties would be prepared to discuss all issues surrounding the proceedings at that conciliation. 3 The conciliation was unsuccessful and the matter was allocated to me for the purpose of pre-hearing directions and case management of the proceedings leading up to their preparation for allocation to a trial Judge. 4 On 5 November 2000 both parties consented, through their solicitors to orders being made by this Court. 5 The first such order required the applicant to file and serve an amended summons and all affidavit material upon which the applicant relied by no later than 10 December 2001. The applicant complied with this order save that, perhaps, the documentation may not have been served until 11 December 2001. 6 The respondent was required to file and serve affidavit material which the respondent wished to rely upon by no later than ten weeks after receipt of the applicant's affidavits. I am told by Mr Reitano of counsel who appears for the applicant in today's proceedings that the ten weeks period expired on 21 February 2002. 7 As at 25 March last, the respondent had not filed any affidavit material. 8 The proceedings were re-listed on that day upon notice to the parties on my own motion to inquire as to the reasons why the timetable had not been complied with. 9 On that occasion I was told by the legal representatives of the respondent that the respondent was not in a position to file any affidavit material. I sought clarification as to the reasons why the Court order had not been complied with and I asked that that information be conveyed to my Associate by urgent letter. 10 By letter dated 25 March 2002, Mr L E Taylor chief solicitor and general counsel of the Commonwealth Bank wrote to my associate under the hand of the solicitor handling the matter Ms Collingwood. 11 That letter indicated that a Mr Jones who is a member of Mr Taylor's office, had a meeting with the head of Group Human Resources, presumably within the Commonwealth Bank group on 14 January last to discuss witnesses who may be available to assist the respondent. 12 The letter said that there was some difficulty in that most, if not all, of the potential witnesses were former employees of the Colonial group, that that group had merged with the Commonwealth Bank group and they had subsequently resigned or had been made redundant. It was said that it was preferable that contact be made with them through a senior executive of the Commonwealth Bank. 13 The letter of 25 March went on to say that at the time of writing the writer was "not aware of the names of the witnesses that will give evidence for the respondent." 14 Furthermore, on 22 March 2002 Ms Collingwood received instructions from the head of Group Human Resources of the Commonwealth Bank that "He would make inquiries as to which persons remain with the respondent and could give evidence in this matter for the respondent" in addition to persons who have since left the employ of the Commonwealth Bank group. 15 The letter concluded that Ms Collingwood was informed she would have details of the relevant persons within three weeks and that two weeks should be allowed for affidavits to be prepared. She considered on this basis that it would unrealistic to suggest a time frame shorter than five weeks for preparation of the bank's evidence. 16 Subsequently, the bank through its solicitor have offered to file and serve all affidavit material on which it relies within a period of two weeks. 17 I must make some observations about the letter of 25 March to which I have referred. 18 The orders which were made by consent on 5 November last were in fact orders of this Court. They are not suggestions to be complied with as and when thought fit. They do not have the same status, as has often been said, of a hairdresser's appointment, which can be changed at whim. These orders are made as part of the important process of the administration of cases within this busy Court. They are made in the interests of justice and the efficient, effective and hopefully cheap execution of the legal processes within this Court. 19 There is a vast public interest in ensuring that litigation is conducted efficiently and effectively. 20 I regard the attempt made in the letter of 25 March to explain the reasons for the non-compliance with the Court orders as being as contemptuous of this Court as the failure to comply with the orders themselves. 21 Indeed, the letter disclosed as I understand it, that the first attempt to ascertain who were the likely witnesses to be relied upon by the respondents occurred on 14 January this year. This is well after the respondent had filed a reply and well after the respondent had attended and participated in the conciliation process. One would have thought that the respondent, being part of the Commonwealth Bank group, and its general counsel Mr Taylor, would have given more earnest consideration to the preparation of the defence of the respondent to these proceedings and the evidence which might be required than is evident from the letter of 25 March last. 22 In all the circumstances, I am not satisfied that the respondent has furnished any adequate explanation as to its failure to comply with the Court orders. 23 However, in the interests of advancing the proceedings, it seems preferable to look forward to the further case management rather than to spend any further Court time in entertaining the available and appropriate sanctions which might otherwise be imposed against the respondent and against its chief counsel Mr Taylor. 24 The respondent through its counsel Mr Cleary has said that it will be in a position to file and serve all affidavit material upon which it relies on or before 12 April next. Accordingly, I order that the respondent do so. 25 I further order that the respondent will not be entitled to rely upon any affidavit material not so filed within that time limit unless the respondent moves the Court before 12 April next for an extension of time in which to do so. Any application must be accompanied by an affidavit setting out in clear terms, the reasons for the extension of time. 26 Any such extension of time will be granted only if the respondent demonstrates compelling and necessitous circumstances as to why an extension of time beyond that date should be granted. 27 The applicant has sought costs of the proceedings today and the proceedings on 25 March last on an indemnity basis. I am prepared to grant indemnity costs with respect to today's proceedings and I order that the respondent pay the applicant's costs on that basis as assessed in default of agreement and that those costs will become due and payable immediately and before the conclusion of the substantive proceedings. 28 With respect to the cost of 25 March last, those proceedings were initiated on the Court's own motion. If they had been initiated on the application of the applicant, I would have been sympathetic to awarding costs. 29 Even though the respondent has been manifestly in default of the consent orders made on 5 November last this Court expects the applicant to be vigilant in ensuring that the applicant's interests are maintained and the Court expects that that vigilance be demonstrated by the legal practitioners concerned. 30 Accordingly, it would have been hoped that the applicant's solicitors would have taken their own steps to have had the matter re-listed once it was clear that the respondent was manifestly in default. On one view of it, to do otherwise would be to condone a breach of the Orders of this Court. 31 Accordingly, I do not propose to award the applicant costs with respect to the mention of these proceedings on 25 March. However, the costs of those proceedings will become costs in the cause. 32 Mr Cleary of counsel who appears for the respondent reminds me that the orders originally made in connection with the preparation of these proceedings for hearing will now require variation. I ask that the solicitors confer as soon as possible with a view to reaching agreement on an amended timetable. 33 I expect the respondent to accelerate to the extent possible its participation in the amended timetable in order to make up for some of the time which has been lost. If the parties are able to reach agreement on an amended timetable, a copy may be forwarded to my Associate and I will make the appropriate orders in chambers. If the parties are unable to reach agreement then the proceedings can be re-listed under the general liberty to apply which I hereby grant. 34 If my Associate has not heard from either party in connection with either of the alternative bases referred to within one month of today, the proceedings will be re-listed on the Court's own motion. On that occasion, the Court would ask the legal practitioners concerned to show cause why the parties should have to bear the costs of any further mention of these proceedings. 35 I direct Ms Collingwood to forward a copy of this judgment to the head of the Group Human Resources of the Commonwealth Bank group after it becomes available. __________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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