Industrial Relations Commission of New South Wales in Court Session CITATION: Gert Schidor Designs Pty Limited v Hardinge [2005] NSWIRComm 230 APPELLANTS: Gert Schidor Designs Pty Limited Gert Schidor PARTIES: RESPONDENT: Biron Hardinge FILE NUMBER(S): IRC 3082 of 2005 CORAM: Wright J President CATCHWORDS: Appeal - Unfair contract - Application for stay - Appeal to be heard in the near future - Balance of considerations - Practical effect of granting stay - History of litigation - Stay declined. CASES CITED: Hardinge v Gert Schidor Design Pty Ltd (No 2) [2005] NSWIRComm 174 HEARING DATES: 06/21/2005 EXTEMPORE JUDGMENT DATE: 06/21/2005 APPELLANTS: Mr J West QC and Mr C Whitelaw of counsel Solicitors: David Legal (Ms S David) LEGAL REPRESENTATIVES: RESPONDENT: Mr A Rogers of counsel Solicitors: Tsolakis Solicitors (Mr V Tsolakis) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President Tuesday 21 June 2005 Matter No IRC 3082 of 2005 GERT SCHIDOR DESIGNS PTY LIMITED AND ANOTHER v BIRON HARDINGE Application by Gert Schidor Designs Pty Limited and another for leave to appeal and appeal against the decision of Justice Boland given on 31 May 2005 in Matter No IRC 3458 of 2003 JUDGMENT (extempore) [2005] NSWIRComm 230 [After fixing the hearing of the appeal for Thursday 28 July 2005, the Court delivered the following extempore judgment in the appellants' stay application.] 1 This is an application for the stay of the proceedings before the Honourable Justice Boland in Biron Hardinge v Gert Schidor Designs Pty Limited and Another (Matter No IRC 3458 of 2003) in which his Honour on 31 May 2005 dealt with certain interlocutory matters relating to an amendment of the summons and an application for the stay of the proceedings to allow the respondents in the proceedings (the present appellants) to seek an anti-suit injunction in the Court of Appeal: see Hardinge v Gert Schidor Design Pty Ltd (No 2) [2005] NSWIRComm 174. 2 It was made plain in the proceedings before me and, indeed, the notice of appeal makes it clear as well, that what is sought to be challenged is only his Honour's refusal to grant a stay of the proceedings. There is no challenge to that part of his Honour's judgment which dealt with the amendment issue. 3 One of the orders made by his Honour, in addition to the order refusing the stay, was an order that the appellants were to appear on Tuesday, 7 June 2005 before his Honour with certain documents as described in the respondent's Notice to Produce dated 11 March 2005. 4 I am informed by counsel that on 7 June in the proceedings before his Honour, his Honour was advised of the fact that the present appeal would be brought and his Honour accordingly stood over to Thursday of this week, 23 June 2005, the issue of production on the Notice to Produce. 5 It seems to me that the only practical effect of the stay sought today, that is, the application to stay the proceedings pending the hearing of the appeal against the relevant part of his Honour's interlocutory judgment, would be to stay the production of the relevant materials, the subject of his Honour's order referred to earlier. Whether that step should be taken now involves a relatively finely balanced question. 6 I am prepared to accept that his Honour resolved the issue of the stay of the proceedings before him on the basis of what appears to be competing authority in both this Court and in the Court of Appeal and, for that reason, at least, I am prepared to accept that the appellants have an arguable case. 7 I am also mindful that there has been a series of litigation between the parties. As well as earlier interlocutory proceedings in this Court before Boland J, there have also been proceedings in the District Court and the Court of Appeal. The fact that the present appeal proceeding is the sixth or seventh (to use a colloquialism) "round" between the parties may well be a factor in favour of granting a stay. On the other hand, I have been informed by counsel for the respondent, without demur from senior counsel for the appellants, that the documents the subject of the notice to produce have been identified and assembled and have been at least notionally produced to the Court, and perhaps so in a practical sense. 8 The question of whether further costs are incurred by having access to those documents thus really seems a matter, in a practical sense, for the respondent. I do not think, in light of that fact, notwithstanding the arguability of the appeal, which is after all, an interlocutory appeal, that I should take a step which would pre-empt in any way the further preparation by the respondent (the applicant at first instance) of his case. Therefore, on a relatively fine balance, I am not minded to grant the stay of his Honour's decision and the application in that respect is declined. 9 The costs of the stay application are reserved. ______________ 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.