Industrial Relations Commission of New South Wales in Court Session CITATION: Lee and Anor v Song and Anor [2005] NSWIRComm 345 FIRST APPLICANT: Jung Ki Lee SECOND APPLICANT: Sharon Fishing Co. S. DE. R.L. PARTIES: FIRST RESPONDENT: Young Dung Song SECOND RESPONDENT: Lobana Trading Pty Ltd FILE NUMBER(S): IRC 3463 of 2002 CORAM: Schmidt J Unfair Contract - notice of motion - conduct of proceedings - dismissal for want of prosecution - ex-parte hearing - failure to prosecute claim in a timely fashion - unrepresented litigants - failure to maintain New South Wales address for service - failure to attend proceedings - application not pursued with due diligence - proper steps have been taken by respondents to inform applicants of application - proceedings dismissed - costs as agreed or assessed - moneys to be released by Registrar to respondents CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Legal Profession Act 2005 Lee and anor v Song and anor [2004] NSWIRComm 335 Mealey v Council of the City of Sydney (2004) 132 IR 177 CASES CITED: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 HEARING DATES: 09/07/2005 DATE OF JUDGMENT: 09/23/2005 APPLICANTS: No appearances LEGAL REPRESENTATIVES: RESPONDENTS: Mr SR Coleman of counsel SOLICITORS: Owen Hodge Lawyers JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J 23 September 2005 Matter No IRC 3463 of 2002 JUNG KI LEE AND ANOTHER v YOUNG DUNG SONG AND ANOTHER Application under s.106 of the Industrial Relations Act 1996 JUDGMENT [2005] NSWIRComm 345 1 These proceedings were commenced in June 2002 under s 106 of the Industrial Relations Act 1996 ('the Act'). Various interlocutory steps have been taken in the proceedings. They have not, however, yet come before the Court for conciliation, as envisaged by s 109 of the Act. This judgment deals with a further motion filed by the respondents in July 2005, seeking the dismissal of the proceedings for want of prosecution. 2 The hearing of the motion proceeded ex-parte. 3 The respondents complained of the applicants' unreasonable failure to prosecute the proceedings in a timely fashion. That complaint was advanced in circumstances where the applicants' former legal representatives filed notices that they had ceased to act for the applicants and where the applicants have failed to maintain New South Wales' addresses for service in the proceedings. The first applicant is a resident in Korea. The second applicant is a Honduras registered company. Attempts at communication with the applicants, both by the Court and the respondents have failed to elicit any response. 4 This situation has arisen in circumstances where Marks J gave judgment in December 2004, in relation to an earlier motion pressed by the respondents. (See Lee and anor v Song and anor [2004] NSWIRComm 335). His Honour declined to permanently stay or strike out the proceedings at that point. That aspect of the motion was advanced on the basis of the principle stated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. His Honour also dealt with a security for costs application, the first applicant having already paid $10,000 into Court for that purpose. Marks J concluded that the respondents should have such an order, but stood the proceedings over, to permit the parties to consider whether further evidence as to the personal applicant's financial means could be put on. 5 The applicants have not put on further evidence, as his Honour invited. They have taken no further steps in the proceedings, nor have they responded to communications from either the respondents or the Court. They also did not appear to resist the orders which are now pressed. 6 The Court has power to dismiss an application for want of prosecution. Rules 146 and 147 of the Commission's rules 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 Mealey v Council of the City of Sydney (2004) 132 IR 177 a Full Bench of the Commission observed at [49] -[50]: 49 It is a fundamental right of any party to litigation to be given reasonable notice of any substantive application moved by the opposing party. A fortiori when the effect of such an application is to finalise the proceedings without trial. By dent of the operation of r147, the effect of dismissal, absent the exercising of a right of appeal, is final. An appellant is unable to bring fresh proceedings. 50 We would make it clear that before a matter can be dismissed under r146, parties must be afforded an opportunity to be heard on the issue. Without this opportunity being given to an applicant, we consider that the Commission would not be in a position to be able to form a proper view of the application. This need not necessarily require the procedure advocated for the appellant under rr68 and 69 (see r69(2)). We note, however, that if dismissal of the proceedings was raised by an appropriate notice of motion and with reasonable notice being afforded to the respondent to the notice of motion, then a failure to attend the proceedings might well result in the application being granted. We emphasise that this was not the case in the proceedings before the Deputy President. 8 In this case, of course, the difficulty is that the applicants do not reside in New South Wales; they have no address for service here; they are unrepresented; they have taken no steps in the proceedings themselves and have not responded to communication from the Court or the respondents; nor have they appeared before the Court to respond to the invitation of Marks J, or to resist the further application now pressed by the respondents. 9 I am satisfied that the respondents have properly taken steps available to them to communicate with the applicants and to notify them of the present application. Justice for applicants cannot be achieved at the cost of injustice to respondents. A balance must be struck. 10 In this case, I am satisfied that the applicants have failed to prosecute the proceedings with due diligence and that in the circumstances, justice requires that the proceedings be dismissed. Orders 11 For all of the reasons given, I order that: 1. The proceedings be dismissed. 2. The applicants pay the respondents' costs, as agreed or assessed. 3. The Registrar release to the respondents so much of the money paid into Court by the applicants as security for costs, as would satisfy the respondents' costs, following upon the parties advising that an agreement as to costs has been reached, or the respondents filing a certified copy of a costs' assessment undertaken by an assessor, in accordance with the provisions of the Legal Profession Act 2004. Any remaining sum is to be returned to the first applicant. ------------------------ 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. 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