Industrial Relations Commission of New South Wales in Court Session CITATION: Piriz v AAPT Limited [2005] NSWIRComm 374 APPLICANT/RESPONDENT ON MOTION Eduardo Piriz PARTIES: RESPONDENT/APPLICANT ON MOTION AAPT Limited FILE NUMBER(S): IRC 2687 of 2002 CORAM: Staff J CATCHWORDS: Unfair contract - Summons under s 106 of the Industrial Relations Act 1996 - Notice of motion by respondent for dismissal of summons for want of prosecution - Whether application pursued with due diligence - Industrial Relations Commission Rules 146 and 147 considered - Interests of justice best served if application permitted to be heard and determined - Applicant failed to comply with directions of court - Disentitling conduct - Applicant to pay respondent's costs - Motion dismissed Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules 1996 Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Fox v GIO Australia Ltd (2002) 56 NSWLR 512 Hakim v Hakcom Investments Pty Ltd & anor [2004] NSWIRComm 405 Koprivnjak and Others v Body Corporate Services (NSW) Pty Limited (1999) 87 IR 49 Latoudis v Casey (1990) 170 CLR 534 Mealey v Council of the City of Sydney (2004) 132 IR 77 Mitchforce v Starkey and Another (2002) 117 IR 122 CASES CITED: Oshlack v Richmond River Council (1998) 193 CLR 72 Raymond Hoser v Christopher Hartcher [1999] NSWSC 527 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Sydney Legacy Appeals Fund v Simpson (2003) 125 IR 200 Tuholi Pty Ltd v Caltex Australia Petroleum Pty Ltd (2001) 103 IR 329 Van Huisstede v Commissioner of Police (No. 2) (2001) 106 IR 56 WRITTEN SUBMISSIONS: 08/09/05, 22/09/05, 30/09/05 HEARING DATES: 05/12/2005; 08/23/2005 DATE OF JUDGMENT: 10/21/2005 APPLICANT/RESPONDENT ON MOTION Mr A Britt of counsel Solicitor: Mr J Biady J Biady & Associates Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT/APPLICANT ON MOTION Mr B Cross of counsel Solicitor: Mr WK Fisher AO QC Fisher Cartwright Berriman JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staff J 21 October 2005 Matter No IRC 2687 of 2002 EDUARDO PIRIZ v AAPT LIMITED Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2005] NSWIRComm 374 1 AAPT Limited, the respondent in these proceedings (applicant on the motion) has filed a notice of motion in which it seeks an order that an application brought pursuant to s 106 of the Industrial Relations Act 1996 ("the IR Act") by Eduardo Piriz, the applicant, (respondent on the motion), contending that his contract of employment has operated unfairly, should be dismissed for want of prosecution. 2 The grounds and reasons in the notice of motion are as follows: 1. The Respondent has consistently failed to comply with Directions and Orders made by the Court with respect to the programming of this matter, including but not limited to the following occasions: (a) The Respondent failed to file and serve his affidavit material on or by 28 July 2004, in accordance with the Consent Orders between the parties filed in the Registry of the Court on 14 May 2004 ("Consent Orders"); (b) The Respondent failed to serve his request for classes of documents pursuant to rule 162 of the Industrial Relations Commission Rules 1996 ("Request for Discovery") on or by 24 May 2004, in accordance with the Consent Orders; (c) The Respondent has to date, failed to serve his "re-fashioned" Request for Discovery in accordance with the Directions made by Justice Staff of the Court on 14 September 2004; (d) The Respondent failed to file and serve his affidavit material on or by 22 November 2004, in accordance with Orders made by Justice Staff of the Court on 25 October 2004; and (e) The Respondent failed to file and serve his affidavit material on or by 8 December 2004, in accordance with the Directions made by Justice Marks of the Court on 24 November 2004. 2. The Applicant further relies on the matters of fact set out in the Affidavit of Benjamin Gee affirmed 10 December 2004, in support of this Notice of Motion. 3. Such other grounds as the Court deems appropriate, the orders sought by the Applicant be granted. 3 Mr B Cross of counsel, who appeared for the respondent relied upon an affidavit of Benjamin Josef Gee, solicitor for the respondent, and David Bruce Napper, the respondent's Human Resources Manager, Corporate, both of whom were required for cross-examination. 4 In opposing the notice of motion, Mr A Britt of counsel, relied upon affidavits of the applicant and Mr James Biady, the applicant's solicitor. Each was required for cross-examination. 5 The applicant conceded grounds B.1.(a), (c), (d) and (e) of the notice of motion. However, it submitted that there were good reasons for the applicant being unable to comply with the orders made by the Court and that the Court should not dismiss the summons for want of prosecution. The Statute and relevant principles 6 The power of the Commission to dismiss for want of prosecution arises from r 146 and 147 of the Industrial Relations Commission Rules 1996 ("the Rules"). Rule 146 and r 147 provide: 146 Want of prosecution Where any party has not done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may: (a) order that the application be dismissed for want of prosecution, or (b) fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed, or (c) make such further or other order as in the circumstances may seem just. 147 Effect of dismissal Subject to any right of appeal, where a tribunal dismisses an application for want of prosecution the applicant shall not claim the same relief in fresh proceedings. 7 In Koprivnjak and Others v Body Corporate Services (NSW) Pty Limited (1999) 87 IR 49, Peterson J, and in Hakim v Hakcom Investments Pty Ltd & anor [2004] NSWIRComm 405, Staff J heard notices of motion which sought to dismiss an applicant's claim for want of prosecution. The Court applied the principles developed in the Supreme Court of New South Wales when exercising its discretion under r 146. 8 These principles were succinctly summarised by Simpson J in Raymond Hoser v Christopher Hartcher [1999] NSWSC 527 and respectfully adopted by me in Hakim v Hakcom Investments at [24] as follows: … 1. The ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited , unreported, 19 November 1995, per Sperling J. 2. The discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of discretion: Stollznow v Calvert . 3. Any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J. 4. Personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73. 5. A defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, par 13,022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestly JA. 6. Delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor; Calvert v Stollznow, per Cross J; Burke v TCN. Simpson J observed that in her view, this circumstance must be treated with some caution, noting that the weight that can be accorded to that delay is limited. 7. The onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise. 8. Prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay. 9. What the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. 10. The plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred), it is less likely that justice will be done by striking the action out: Razvan, per Kirby P. 11. The exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice. 9 In Mealey v Council of the City of Sydney (2004) 132 IR 177 at [51], the Full Bench, after considering r 146 observed: We wish to make two further observations. Rule 146 requires a finding that a party "has not pursued the proceedings with due diligence". In considering any application for want of prosecution it is important to make a proper assessment as to whether the history of the proceedings warrants such a conclusion… 10 In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the High Court observed at 154: …Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. 11 The dicta from the State of Queensland v JL Holdings Pty Ltd has been applied by Full Benches of this Commission in Sydney Legacy Appeals Fund v Simpson (2003) 125 IR 200 at [19] and Mitchforce v Starkey and Another (2002) 117 IR 122 at [26]. Chronology/Evidence 12 The chronology of this matter can be conveniently summarised as follows: 4 January 2001 Applicant's employment with the Respondent ceases. 10 May 2002 Summons under Section 106 filed. The summons seeks orders that, inter alia, the contract between the applicant and the respondent be varied so as to provide one year's pay in lieu of notice on termination of the applicant's employment, that payments be made for the applicant's outstanding expenses and commission payments, and other orders arising from the termination of the employment of the applicant. July 2002 Applicant's solicitor has preliminary discussions with an accountant concerning quantification of the applicant's claim against the respondent. Mr Petsas, the Human Resources Manager of the respondent, who verified the respondent's reply, makes attempts to contact persons named in the applicant's summons and is only able to contact Mr Chris Bouziannis. 1 August 2002 Applicant files response. 7 November 2002 Respondent files reply. 15 April 2003 Conciliation occurs before Glynn J. Matter adjourned for further conciliation. 15 April 2003 Correspondence from respondent's solicitors concerning production of documents. 19 May 2003 Respondent's solicitors write to applicant's solicitor and provided a number of documents. 20 May 2003 Applicant's solicitor receives small bundle of documents from respondent's solicitors. These documents do not satisfy the applicant's request. 22 May 2003 Applicant's solicitor writes to respondent's solicitors concerning records provided and conciliation date. 23 May 2003 Parties request vacation of conciliation date. 16 June 2003 Applicant's solicitor writes to respondent's solicitors to remind them that they have not received documents. 18 June 2003 Conciliation adjourned to date to be fixed. 14 July 2003 The respondent's solicitor sends to applicant's solicitors further documents that had been sought by the Applicant. 15 July 2003 Applicant's solicitor writes to respondent's solicitors concerning provision of documents. 18 July 2003 Applicant's solicitor receives a number of documents on a "without prejudice" basis from the respondent's solicitors. These documents are understood by applicant's solicitor to be incomplete. 21 July 2003 Applicant's solicitor informs respondent's solicitors that he is unable to obtain instructions from applicant concerning correspondence of 18 July 2003. 22 July 2003 Applicant's solicitor writes to Court requesting conciliation of 24 July 2003 be vacated. 19 August 2003 Applicant's solicitor writes to respondent's solicitors concerning production of documents. The applicant's solicitor believes that discovery by the respondent has been inadequate. Respondent's solicitors respond to applicant's solicitor's correspondence. 22 August 2003 Applicant's solicitors write to respondent's solicitors concerning when they expect to be able to provide a response to applicant's claims. Applicant's solicitor writes to the Court. 25 August 2003 Respondent's solicitor writes to the applicant's solicitor concerning consent correspondence to the Court. 26 August 2003 Respondent's solicitors write to the applicant's solicitor concerning changes to letter to the Court. 29 August 2003 Respondent's solicitors write to the applicant's solicitor advising him of those customers it accepts were introduced by the applicant and in reply to the applicant's solicitor's correspondence of 19 August 2003. 11 February 2004 Applicant receives notice of listing for conciliation before Staff J. 20 February 2004 Respondent's solicitors write to the applicant's solicitor setting out their understanding of the history of the matter and wanting response to correspondence of 29 August 2003. 17 March 2004 Applicant receives unsealed copy of a notice of motion and affidavit from Mr Gee seeking to strike out the applicant's summons for want of prosecution. Conciliation before Staff J and issuing of certificate of failed conciliation. 29 March 2004 Applicant receives an appointment for hearing date. 7 April 2004 Applicant's solicitor writes to the respondent's solicitors seeking documents sought previously. 20 April 2004 Applicant's solicitor writes to respondent's solicitors seeking a reply to correspondence of 7 April 2004. Applicant's solicitor writes to respondent's solicitors concerning draft orders. 21 April 2004 No appearance by applicant at directions hearing. Application by consent for one-week adjournment rejected and parties are to file consent orders within 7 days. 23 April 2004 Applicant's solicitor writes to the respondent's solicitors. 11 May 2004 Applicant's solicitor sends email to respondent's solicitors enclosing revised consent orders. 13 May 2004 Applicant's solicitor writes to respondent's solicitors seeking a response to email. 14 May 2004 Consent orders filed directing the applicant to file and serve all affidavit material to be relied upon by 28 July 2004. The consent orders also provided for the applicant to serve a request for classes of documents before 24 May 2004. 24 May 2004 Applicant's solicitor forwards to the respondent's solicitors a list of classes of documents sought by email. This email was not received by the respondent's solicitors. 22 June 2004 Respondent's solicitors write to the applicant's solicitor concerning the consent orders. 24 June 2004 Applicant's solicitor responds to correspondence from the respondent's solicitors of 22 June 2004 and asks when documents are to be provided. Respondent's solicitors write to the applicant's solicitor noting they had not received request for discovery. 2 August 2004 Respondent's solicitors write to the applicant's solicitor complaining about failure to comply with consent orders. 4 August 2004 Respondent's solicitors write to Court to have the matter re-listed. The applicant's solicitor then calls the respondent's solicitors to ask whether they have located email of 24 May 2004. The solicitors also discuss technical objection and r 164 and r 163 of the Rules to such a notice. As at this date the applicant's solicitor has not responded to earlier correspondence of 24 June 2004 and 2 August 2004. Respondent's solicitors write to the applicant's solicitor setting out their version as to what had occurred. Respondent's solicitors write to the applicant's solicitor informing them that they are seeking to have matter listed for mention. 9 August 2004 Matter listed for mention before Marks J. 10 August 2004 Respondent's solicitors writes to the applicant's solicitor requesting list for discovery. 11 August 2004 Matter listed for further mention before Marks J. Applicant's solicitor provides respondent's solicitor with copy of email of 24 May 2004. Solicitor for the respondent advises his Honour that email of 24 May 2004 not received because of the involvement of a "hacker" in respondent's computer system. 23 August 2004 Applicant files summonses for production of documents on a range of persons. 2 September 2004 Respondent's solicitors write to the Associate of Marks J seeking a further mention. 14 September 2004 Mention before Staff J. Applicant directed to re-fashion the request for classes of documents within 14 days. No request forwarded to respondent. 28 September 2004 Mention before Staff J. Applicant directed to provide the request for orders for discovery by close of business on 28 September 2004. The applicant failed to comply with this direction. 6 October 2004 Respondent's solicitors write to the applicant's solicitor requesting refashioned list for discovery. 11 October 2004 Applicant's solicitor writes to the respondent's solicitors in response to correspondence of 6 October 2004. 25 October 2004 Mention before Staff J. Orders made directing applicant to file and serve all affidavit material to be relied upon by 22 November 2004. Orders contained provision for discovery in accordance with the Rules. The applicant concedes that it could not resist such orders. 22 November 2004 The applicant failed to file his affidavits. 24 November 2004 Mention before Marks J. His Honour orders that "the applicant is to file and serve all affidavit material on which he seeks to rely within 14 days, and applicant will not be permitted to rely on any affidavit material in chief that is not filed within that period without further order of the Court." Respondent's solicitors write to the applicant's solicitor concerning proposed orders. 5 December 2004 Applicant's solicitors write to the respondent's solicitor in which the applicant's solicitors do not agree with the respondent's proposal. 8 December 2004 The applicant failed to file and serve his affidavits in accordance with the directions of Marks J and did not approach to the Court to seek an extension of time. 10 December 2004 Respondent files notice of motion for strike out and affidavit. 21 January 2005 Applicant files summonses for production on Clayton Utz solicitors. 24 January 2005 The applicant's affidavit was filed in these proceedings. 1 March 2005 Affidavit of Mr Biady filed, which had been required to be filed by 24 January 2005. 18 March 2005 Applicant files notice of motion seeking orders made by Marks J on 24 November 2004 to be vacated. 12 May 2005 and 23 August 2005 Hearing of notice of motion. 13 At the conclusion of the hearing of the evidence, the parties agreed to the filing of written submissions. Submissions of the Respondent 14 The essential elements of Mr Cross' submissions may be summarised as follows: (i) The consistent failure of the applicant to file evidence exhibits a distinct lack of interest in the proceedings. (ii) Mr Cross pointed to: (a) The applicant not seeking discovery in accordance with the orders of 25 October 2004. (b) The applicant not filing and serving his affidavits by 22 November 2004. Nor did the applicant advise the respondent that the affidavits would not be filed. (c) On 24 November 2004, Marks J ordered the applicant to file and serve his affidavits within 14 days, and that the applicant would not be permitted to rely on any affidavit material in chief not filed within that period without further order. The 14 day period was agreed between his Honour and Mr Biady, solicitor for the applicant. (d) The applicant failed to file and serve his affidavits within 14 days and did not approach the Court to seek an extension of the time to file and serve. The applicant's explanation for that failure upon the questioning of the Court was nothing short of bizarre. (e) On 5 December 2004, the applicant indicated that a notice of motion was in the process of being filed. That notice of motion was not filed, until 18 March 2005. (f) The applicant's failure to file and serve affidavits, and the respondent filing a notice of motion. At the callover of the notice of motion, Marks J gave the applicant until 22 January 2005, to file a notice of motion and affidavits to allow him to file primary material. The timetable was highlighted by his Honour in most severe terms. (g) The applicant's affidavit being filed on Monday 24 January 2005, and Mr Biady's affidavit not being filed until 1 March 2005, after the first scheduled day for hearing in early February. (h) Despite the warnings, the applicant did not file his notice of motion until 18 March 2005. The notice sought to cavil with the directions and rulings of the Commission on 14 September 2004, 28 September 2004 and 25 October 2004. (i) In Mr Biady's affidavit in these proceedings, he states that six further witness statements would be filed within two weeks (of 1 March 2005). Only one affidavit, has so far been filed, this being on 11 May 2005, one day before the first day of the hearing in these proceedings. (iii) There was no attempt to blame the failure of the applicant on the tardiness or other fault on the part of the applicant's legal representative. (iv) The respondent has sought to progress the substantive proceedings at every stage. The applicant did not commence proceedings against the respondent until 15 months after he resigned, notwithstanding that the applicant resigned specifically because of the respondent's failure to properly pay him his commissions. (v) The delay in commencing proceedings resulted in prejudice to the respondent in that a number of principal employees named in the summons for relief and response have now left the employ of the respondent and there has been an inability to contact most of those persons. (vi) The applicant has little prospects of success because: (a) The applicant is in breach of the order of Marks J dated 24 November 2004. (b) The claim, as outlined by the applicant, does not disclose an actionable unfair contract claim. (c) The Commission should be cautious in accepting the evidence of Mr Piriz. It was contended, he attempted to give evidence rather than answer questions and was unresponsive. It was contended Mr Biady was evasive and appeared at times to have difficulty in answering direct questions. (d) The overall interests of justice require that the applicant's summons for relief be dismissed for want of prosecution in light of the applicant's claim of an inability to complete his affidavit without full access to the actual customer files of the respondent; the disregard of extensive orders and directions of the Court since 25 October 2004; the failure of the applicant to issue a summons for production on the respondent; the failure of the applicant to issue a request for orders for discovery acceptable to the Commission and the failure of the applicant to respond to the respondent's offer to waive the "without prejudice" nature of the documents produced. 15 Counsel for the respondent noted that r 146 also provides alternatives to the striking out of an application where a party has not pursued proceedings with due diligence. It was submitted that, should the Commission decline the respondent's application for dismissal, due to the conduct of the applicant since his failure to comply with the orders of the Commission of 25 October 2004 and his consequent failures in the filing of its affidavit material, the applicant and/or his legal practitioner should pay the costs of the respondent from 25 October 2004, to date, on an indemnity basis. Further, or in the alternative, the applicant and/or his legal practitioner, should pay the costs of the respondent for this motion on an indemnity basis. Applicant's Submissions 16 Mr A Britt's submissions may be summarised as follows: (i)The history of this matter illustrates that from July 2002 until 14 May 2004, the importance that the applicant placed on the receipt of documents in the possession of the respondent to both prove and quantify the applicant's claim under s 106 and the attempts to obtain such documents from the respondent. The applicant was still seeking to agitate the issue of discovery in August 2004. (ii) The response by the respondent to these requests was unsatisfactory. The respondent produced one small bundle of documents on 19 May 2003 which did not satisfy the applicant's request. Another group of documents was only provided on a "without prejudice basis" on 18 July 2003. (iii) The respondent was only prepared to remove the restriction if the applicant agreed to narrow his request for discovery. Counsel contended that there is evidence that other documents exist but have not been produced by the respondent. It was further contended that documents held by Clayton Utz solicitors were not considered by the respondent's solicitors. The respondent only provided documents on the basis of the position adopted by it and not that adopted by the applicant in relation to the disputed accounts. (iv) In relation to documents in a matter brought in the Supreme Court, the respondent objected to their use in these proceedings. (v) Mr Britt contended the general attitude of the respondent was typified by the respondent's failure to respond to the applicant's correspondence of 7 April 2004 and 20 April 2004 because in the opinion of the respondent's solicitor, Mr Gee, "it was flogging a dead horse". (vi) Counsel contended that the importance of such corporate documents in proceedings generally was recognised by Mason CJ and Toohey J in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 504 who observed that in the case of corporations, their books and documents constitute the best evidence of their business transactions and activities. (v) Counsel submitted that the Court, on balancing the prejudice to the respective parties by making or not making an order, justice does not demand that the applicant's summons for relief be dismissed. (vi) The respondent has not demonstrated a clear case that dismissal for want of prosecution is manifestly warranted. (vii) The applicant has provided an explanation for the delay based on both the need for documents and his own personal circumstances. (viii) Part of the reason for the delay arose as a result of the actions of others. (ix) The respondent has failed to demonstrate any real prejudice which has arisen as a result of any delay by the applicant following the making of consent orders on 14 May 2004. (x) The applicant has real prospects of success in the substantive proceedings. (xi) At no time has the respondent stated that the documents sought by the applicant do not exist, that they are hard to find or had any complaint. The production of the documents has been resisted on the basis of the late receipt of the list and that because the applicant did not comply with the consent orders of 14 May 2004, he has lost the opportunity to obtain discovery of documents other than those the respondent is prepared to provide. (x) The ultimate aim of a court is the attainment of justice. The discretion under r 146 ought not to be used to supplant the overall aim of the attainment of justice. Justice is not advanced by dismissing the applicant's claim. (xi) In the alternative, it was submitted that the Court has a discretion under r 146(b) to fix a definite time for the doing of the act and at the same time order that upon non-compliance, the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that the application be dismissed. 17 Counsel submitted that the usual rule that costs follow the event should apply and that there was no "disentitling conduct" by the applicant that would deprive him of the costs of the motion if successful: Latoudis v Casey (1990) 170 CLR 534 at 565 - 566; Oshlack v Richmond River Council (1998) 193 CLR 72 at [98]. The applicant conceded that costs may be awarded against a legal representative pursuant to r 209. However, it was submitted that the legal representative must be given a reasonable opportunity to be heard before such an order can be made. This had not occurred. 18 Finally, it was submitted that the facts in this case do not warrant the granting of costs on an indemnity basis, especially in relation to costs that pre-date the filing of the notice of motion: Tuholi Pty Ltd v Caltex Australia Petroleum Pty Ltd (2001) 103 IR 329 (followed in Van Huisstede v Commissioner of Police (No. 2) (2001) 106 IR 56 and more recently in Fox v GIO Australia Ltd (2002) 56 NSWLR 512). Consideration 19 I have set out earlier in this judgment the principles to be applied in determining this application. 20 The history, illustrated by the chronology, is that from July 2002 until 14 May 2004, the applicant placed importance on the receipt of certain classes of documents in the possession of the respondent to prove and quantify the applicant's claim under s 106 and the attempts to obtain such documents. The applicant consistently maintained the need to resolve the issue of discovery prior to the filing of affidavit material. 21 The evidence as to why certain documents of the respondent are so important for the applicant to prepare his case was stated by the applicant in his affidavit at par 4 as follows: I am informed by my solicitor, Mr James Biady, and verily believe that in order to prove my claim for commissions, I must provide evidence as to a number of aspects including the billings by AAPT to those customers. Those records are with AAPT and, other than for a small bundle of records produced in July 2003, AAPT has refused to provide any billings or other records to me. No documents have been produced to me since 17 July 2003, notwithstanding many requests by my solicitor since that date. 22 Mr Piriz stated that he had not been provided with any documents in relation to his commission package prior to commencing employment. Mr C Bouziannis had explained commission arrangements to the applicant and subsequently written some notes to show how much commission he could expect to earn. The applicant was given an example that if he was to meet the sales targets, he would be able to earn well in excess of $200,000 per annum as remuneration including commissions. 23 The applicant further contended that incomplete invoices had been provided to him instancing invoices in respect of two companies, Tech Pacific and Dell Computers. There is a further dispute in respect of which sales representative/s introduced approximately another 12 companies and which salesperson is entitled to commission. The applicant contends that in respect of these companies, he introduced them and is entitled to commission. The applicant's evidence is that even if some of the companies were existing clients of the respondent, he provided new services to those clients and is entitled to commission on those services. Some of the dispute seems to revolve around an existing commission plan that was being revised at the time that the applicant commenced employment with the respondent. Where billing data has been produced by the respondent, the applicant contends that such material mostly covers a period of three months only and the documentation has been provided only on a without prejudice basis. 24 Mr Biady's evidence is that he does not believe that the respondent has made a full and complete disclosure of records for even those customers whom it is willing to concede were introduced by the applicant. 25 The applicant contends that he could not file his affidavit in the absence of the discovered documents and was not aware until 24 June 2004 that the respondent had not received the list outlining the classes of documents the applicant sought to discover. The request for classes of documents was subsequently annexed to a letter to the respondent dated 2 September 2004. 26 When the proceedings came on for further directions before me on 14 September 2004, the applicant was directed to re-fashion the request for classes of documents. 27 The matter was listed for further directions before me on 28 September 2004. On that day, I made the following directions: 1 I direct that the parties respective counsel confer as a matter of urgency with a view to reaching an agreement in respect of a list of documents for discovery. 2 Secondly, I directly that counsel also confer in respect of the appropriate orders that should be made to prepare this matter for trial. In that regard, the draft consent orders attached to the facsimile from Fisher Cartwright Berriman dated 20 August 2004 should be used as a working document and/or first proposal. 3 I order that the applicant pay the respondent's costs of today forthwith. 28 After making these directions, Mr Biady indicated that he was due to leave for overseas that afternoon and would not be returning until 11 October 2004. In those circumstances I directed that Mr Biady should make every endeavour to provide the re-fashioned request for discovery to the solicitors for the respondent prior to his departure overseas. This did not occur. 29 The matter was again listed for directions before me on 25 October 2004. On that day, I directed, amongst other directions, that the applicant was to file and serve his affidavit material by 22 November 2004 and that discovery was to proceed in accordance with the Court Rules. 30 Further directions were subsequently made by Marks J on 24 November 2004 requiring the applicant to file his affidavit material by 8 December 2004. By this date, the applicant had only filed one affidavit. The orders made by Marks J were: The applicant is to file and serve all affidavit material on which he seeks to rely within 14 days, and he will not be permitted to rely on any affidavit material in chief that is not filed within that period without further order of the Court. Any such order must be sought by filing a notice of motion and an explanatory affidavit in support. And then I leave it to the sensible agreement by everyone to file or to bring on an amended timetable and a copy forwarded to my associate, and we will make orders in Chambers. 31 Mr Britt submitted that in addition to the delay that arose due to the respondent not receiving the applicant's email of 24 May 2004 setting out the classes of documents sought to be discovered, an additional reason for the delay was the applicant's personal circumstances, particularly between March 2004 and November 2004. The evidence was that the applicant's present employer, at that time, was engaging in a series of retrenchments of senior personnel and he was extremely concerned that he may also lose his job and he had to focus on his day to day work. It was made clear to him that he had to devote himself to his work or otherwise he was exposed to being terminated. 32 Further, the applicant was also required to travel overseas for work. The applicant's evidence was that due to his financial commitments, he had insufficient income to pursue this matter at this time and became depressed, particularly because he believed he was entitled to substantial commissions from the respondent and it appeared that he would be involved in a long court battle. In respect of his financial circumstances, he was receiving a number of requests for payment from his lawyers as well as from other creditors. All of these matters, it was contended, made it difficult for the applicant to respond quickly to requests for information from his solicitors. Mr Biady also gave evidence as to the applicant's personal circumstances and the effect it had on his ability to meet various timetables ordered by the Court. 33 I am prepared to accept that the applicant requires a range of documents from the respondent to prove and quantify his claim and secondly, that the applicant has had a number of personal circumstances that have made the prosecution of his claim more difficult than it may have otherwise been. Up until the lost email of 24 May 2004, the applicant was prosecuting his claim. It was only after that time that the issue of discovery, as Mr Britt submitted "came off the rails" and the applicant ceased to abide by the Court's directions. 34 The respondent submitted that due to the delay it would be prejudiced because key witnesses had left the employ of the respondent and there had been an inability to contact most of those persons. The evidence discloses that such persons were not available from the middle of July 2002. Presumably, the respondent would have had the same difficulty in contacting witnesses, even if the applicant had complied with the orders of 14 May 2004. The evidence, such as it is from the respondent, was that to date attempts had only been made by Mr Petsas to contact nine employees by telephone. Mr Napper did not know whether the persons concerned were contactable and I am therefore not prepared to make a finding that the respondent is unable to find relevant witnesses and is thus prejudiced in the substantive proceedings as a consequence of any delay by the applicant. It seems to me, that in order to determine what appears to be one of the major issues in the applicant's claim, that is, which clients were his for the purposes of calculating commissions, is more likely to be answered by documentary evidence than by evidence from individuals. 35 Mr Napper conceded that in respect of documents and/or records of the respondent, the delay by the applicant did not substantially prejudice the respondent. His evidence in respect of prejudice arising from the availability of witnesses was, to say the least, speculative, and I do not propose to give it much weight. 36 There is little doubt that there has been a period of inactivity between 24 May 2004 and the date of the filing of the notice of motion to strike out these proceedings, being 10 December 2004. However, in my view, part of the delay during this period (24 May 2004 to 11 August 2004) is attributable to the fact that the email forwarded by the applicant's solicitors to the respondent's solicitor was not received. This period of inactivity should not be visited entirely upon the applicant. 37 Although the applicant did not seek to apportion any blame upon his solicitor, it does seem to me that through a combination of inattention by Mr Biady due to his overseas trip, and the non receipt of the email of 24 May 2004, there has been a failure to provide categories of documents for discovery. As I have already stated, I am prepared to accept the evidence of the applicant and Mr Biady that documents held by the respondent are required to be discovered to enable the applicant to file his affidavit evidence. However, in reaching this conclusion, I wish to make it clear that the Court views the failure to comply with its directions most seriously. Such matters are appropriate to be taken into account when the Court exercises its discretion in relation to costs. 38 I have formed the view that upon balancing the prejudice to the respective parties, it does not seem to me that justice demands that the summons should be struck out. In my view, the evidence does not demonstrate that the applicant has not pursued the proceedings with due diligence and that such conclusion is not available on the evidence. 39 In reaching this decision, I am also mindful of the observations of the High Court in the State of Queensland v JL Holdings Pty Ltd at 154 where it was said: … Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. 40 These observations have been applied by Full Benches in Sydney Legacy Appeals Fund v Simpson at [19] and Mitchforce Pty Ltd v Starkey at [26]. Costs 41 Before making orders in this matter, I wish to say something about the question of costs. 42 Mr Cross submitted that the applicant and/or his legal practitioner should pay the costs of the respondent from 25 October 2004, to date, on an indemnity basis or, in the alternative, the costs of the respondent for this motion on an indemnity basis. 43 In my view, the facts of this case do not warrant such orders, especially in relation to costs that pre-date the filing of the notice of motion. However, in my view, the applicant should pay the respondent's costs of the motion. I have come to this decision taking into account the provisions of r 146(c) which provides a Tribunal may: Make such further or other order as in the circumstances may seem just. 44 On five separate occasions, the applicant has failed to comply with directions made by Members of this Court. On none of these occasions did the applicant approach the Court to seek a variation of the orders or directions that had been made. The history of the matter discloses that it was the respondent that on at least two occasions brought the matter back before the Court to seek further directions or variation of directions due to the non-compliance by the applicant. In my view, the conduct of the applicant during the proceedings since 11 August 2004 can properly be characterised as disentitling conduct to the beneficial exercise of the discretion to make the usual order as to costs. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 at 874, Devlin J formulated the relevant principle as follows: …No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct. … 45 In Oshlack v Richmond River Council the High Court referred to Anglo-Cyprian Trade Agencies Ltd. At 97, 98 McHugh J wrote: "Misconduct" in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute. (Footnotes omitted). 46 In my view, there are sufficient special circumstances to justify a departure from the ordinary rule as to costs. I therefore propose to order that the applicant pay the respondent's costs of the motion. Conclusion Bottom of Form 47 I am cognisant of the orders made by Marks J on 21 October 2004 and 24 November 2004 and the notice of motion filed by the applicant to have those orders vacated. That motion has yet to be heard. I am prepared to hear the parties in respect of that motion should either party wish to put submissions to the Court. However, the course which I propose to adopt, in light of the provisions of r 146(b), is to vary the orders made by Marks J by fixing the following timetable and making the following orders. ORDERS I make the following orders: 1 On or before 4 November 2005, the applicant and the respondent, through their respective counsels, are to prepare an agreed list of classes of documents to be produced by the respondent for inspection. 2 The respondent will produce for inspection on or before 18 November 2005, documents within the agreed list of classes of documents. 3 Thereafter, the process of discovery shall apply in accordance with the Rules. 4 The applicant is to file and serve all affidavit material to be relied upon by 23 December 2005. 5 The respondent is to file and serve all affidavit material to be relied upon in reply by 3 February 2006. 6 The applicant is to file and serve any affidavits in response to the respondent's affidavit by 17 February 2006. 7 Hereafter the standard directions provided for in Practice Direction No 14 shall apply. 8 Any application by the applicant to vary the timetable shall be made at least seven days prior to the compliance dates, that is, the dates referred to in Orders 1, 3, 4, 6 and 7 above, and shall be accompanied by an undertaking to pay the respondent's actual costs of the said application. The programme will not be varied unless made (with the necessary undertaking) prior to the compliance date and where a substantial fresh ground for variation is made out by the applicant. 9 In the event that the applicant fails to comply with any requirement in Orders 1, 3, 4, 6 and 7 above, without having any variation to those orders as provided for in accordance with Order 8, the Court makes the following self executing orders: (i) The application is dismissed. (ii) The applicant will pay the respondent's costs. (iii) If self executing orders are made, I give liberty to the respondent to make an application for indemnity costs. 10 Each party has leave to approach my Associate in respect of the proposed orders. In the event that such leave is not sought within seven days of this judgment, the orders shall be taken to be confirmed. 11 The notice of motion is dismissed. 12 The applicant (respondent on the motion) shall pay the costs of respondent (applicant on motion) of the notice of motion, as agreed, or as assessed in accordance with the Rules of the Court. 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.