Industrial Relations Commission of New South Wales in Court Session CITATION: Kennett and anor v Mayrana Pty Ltd and ors & Myong Ho Pak v Mayrana Pty Ltd and anors [2005] NSWIRComm 134 FIRST APPLICANT (IRC03/3679) Keith Franklin Kennett SECOND APPLICANT(IRC03/3679) K F Kennett Nominees Pty Ltd APPLIANT (IRC03/3680) Myong Ho Pak FIRST RESPONDENT PARTIES: Mayrana Pty Ltd SECOND RESPONDENT Garratts Limited THIRD RESPONDENT Christopher Campell FOURTH RESPONDENT Mike Traynor FILE NUMBER(S): 3679 & 3680 of 2003 CORAM: Marks J LEGISLATION CITED: Legal Profession Act HEARING DATES: 04/21/2005 EXTEMPORE JUDGMENT DATE: 04/21/2005 APPLICANTS Mr A Britt of counsel Solicitor: Mr G H Healy G H Healy & Co, Sydney LEGAL REPRESENTATIVES: RESPONDENTS Mr P Kite SC Solicitor: Mr K Pringle Gordon & Johnstone Solicitors JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MARKS J TUESDAY 21 APRIL 2005 Matter No IRC 3679 of 2003 KEITH FRANKLIN KENNETT AND ANOR v MAYRANA PTY LTD AND ORS Application under s.106 of the Industrial Relations Act 1996 Matter No IRC 3680 of 2003 MYONG HO PAK v MAYRANA PTY LTD AND ORS Application under s.106 of the Industrial Relations Act 1996 JUDGMENT (EXTEMPORE) [2005] NSWIRComm 134 1 These matters have been the subject of gross delay on the part of the applicants in prosecuting their claims. The summonses were originally issued in July 2003 and there has been a considerable delay since in the applicants determining whether the proceedings are to be amended. The material before the court indicates prevarication in this regard over a long period of time and the involvement of solicitors and counsel in determining the nature and extent of any amendment, and indeed as to whether any amendment to the proceedings was to be made. 2 As I understand it, the respondents have consented to the proceedings being amended in a manner foreshadowed by the applicants' solicitors a few days ago and the amended summonses are to be filed shortly. Such a step is taken without prejudice to the respondents' rights to raise any matter of a jurisdictional or other appropriate kind with respect to the amendments. 3 The matters have been the subject of recent directions. They were listed on 24 March 2005 then stood over to 6 April 2005 on the basis of a show cause hearing and there has been a further hearing of both matters today after additional evidentiary material has been filed. 4 The applicants have through their counsel, Dr Berwick, indicated that the solicitor on the record in each matter is a Ms Munc. None of the documentation filed with the court in either matter mentions her name and indeed, affidavit material has been filed by Gregory Harrison Healey, a solicitor who styles himself as a consultant to G H Healey and Co - Sydney, a firm of solicitors of which, apparently, Ms Munc is the principal. 5 A further affidavit has been filed by Ms Cassandra Tan, the solicitor with the carriage of the matter. Ms Tan deposes to the fact that she is in the employ of the solicitor for each applicant but does not name that solicitor. 6 These proceedings are to be stood over to enable the court to consider whether there should be any reference to the Legal Services Commission of the circumstances in which both applicants have clearly failed to comply with orders of the court directing that amended summonses be filed by a particular date. Some explanation has been tendered to the court by reference to the inability of one of the applicants to attend on his solicitor and on counsel, and the inability of the other applicant to so attend by reference to the illness of his wife. Some explanation has also been tendered by reference to the unavailability of Mr Healey, solicitor, and Dr Berwick of counsel. These are matters which will be considered by the court in a decision issued shortly. 7 The court reserves specifically the right to examine the totality of the conduct of these proceedings in the event that the applicants again fall into default of any court order in respect to the timely and efficient preparation of these proceedings for hearing. 8 The respondents seek the costs of today and on the previous two occasions on an indemnity basis. I am really unsure as to whether the delay lies with the applicants personally or with the applicants' legal practitioners, whoever they may be. There is an indication in the affidavit filed by Mr Healey that Ms Tan failed to appreciate the fact that orders made by consent did not detract from the validity of court orders and she understood that once there was a consent position then there was no need to comply with the court order if she could negotiate a change with the consent of the other side. Of course, no such consent was ever negotiated with the other side which arguably led to both applicants being in default of the court orders. 9 In terms of costs, I am of the opinion that the applicants should pay the respondents' costs of the three interlocutory proceedings to which I have referred. Because I am unsure as to whether the fault ultimately lies with the legal practitioners or the applicants, or perhaps a combination of both, I shall not order costs on an indemnity basis but on an assessed basis. It will be a matter for Ms Tan or Mr Healey or Ms Munc to explain to the applicants that the court has power in appropriate circumstances to call upon legal practitioners to show cause why costs should not be met by them. Whether and to what extent this is an appropriate course in these proceedings I am unable to say, and I shall therefore take no action to summons any legal practitioner to show cause, accordingly. 10 The applicants are to pay the costs of the respondents in the three interlocutory matters to which I have referred. Those costs shall be in an amount assessed under the Legal Profession Act in default of agreement. Because of the extraordinary delay that has been occasioned to date in the prosecution of these claims and the inability of the respondents through their solicitors to ensure that the applicants have attended to the matters in a timely fashion, those costs should be payable forthwith. 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.