Industrial Relations Commission of New South Wales in Court Session CITATION : Hakim and Hakcom Investments Pty Ltd & anor [2004] NSWIRComm 405 APPLICANT Jonathon Hakim PARTIES : FIRST RESPONDENT Hakcom Investments Pty Ltd SECOND RESPONDENT Anthony Hakim FILE NUMBER: IRC 5105 of 2003 CORAM: Staff J CATCHWORDS : Unfair contract - Summons under s 106 of Industrial Relations Act - 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 - Motion dismissed LEGISLATION CITED : Industrial Relations Act 1996 Koprivnjak & Ors v Body Corporate Services (NSW) Pty Limited 87 IR 49 CASES CITED : Mealey and the Council of the City of Sydney [2004] NSWIRComm 58 Raymond Hoser v Christoper Hartcher [1999] NSWSC 527 The State of Q'ld v J L Holdings Pty Ltd (1997) 189 CLR 146 HEARING DATES: 12/15/2004 EXTEMPORE JUDGMENT DATE : 12/15/2004 APPLICANT/RESPONDENT ON MOTION Mr I Latham of counsel Solicitor: Mr M Garvin Uther Webster & Evans LEGAL REPRESENTATIVES: FIRST AND SECOND RESPONDENTS/APPLICANTS ON MOTION Mr P Moorhouse of counsel Solicitor: Mr K Rodgers Brock Partners JUDGMENT: 1 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION Coram: Staff J 15 December 2004 Matter No IRC No 5105 of 2003 JONATHON HAKIM AND HAKCOM INVESTMENTS PTY LTD & ANOR Application under s 106 of the Industrial Relations Act 1996 EX TEMPORE DECISION The Court has before it a notice of motion which seeks to dismiss the summons filed in this matter for want of prosecution. The history of this matter can be summarised as follows: 1. On 16 March, 2004, the parties were advised this matter was listed for a conciliation conference before me at 2.00 pm on 14 April 2004. 2. On 17 March 2004, the solicitor for the applicant advised that his client was not available on that day and sought a conciliation conference before 8 April 2004. 3. A conciliation conference was re-scheduled for 8 April 2004. This date was not suitable to the respondent's counsel. 4. The Court fixed the conciliation conference for 13 April 2004, a date which was not suitable to both parties. 5. It was therefore listed for mention on 29 March 2004. At this mention, the applicant, through his solicitor, made an application for a six month adjournment because he was going overseas on 10 April 2004. 6. The respondent did not consent or oppose the application. The matter was adjourned for a conciliation conference on 7 October 2004. On that day there was no appearance for the applicant. 7. Mr A Todd, who appeared for the respondent, made an application that the proceedings be dismissed or a self executing order issued. 8. I adjourned the matter for mention on 29 October 2004 on the basis that the Court would cause a notice to be forwarded to the applicant at his lastknown address (a notice of ceasing to act having been filed by his solicitor on 24 September 2004) advising that the matter would be listed for further mention and directions on that day and furthermore that if there was no appearance by the applicant, I would entertain an application to dismiss the application. 9. On 29 October 2004, Ms K Huntsman solicitor appeared for the applicant and Mr P Moorhouse of counsel for the respondent. Ms Huntsman sought an adjournment on the basis that she had difficulty in getting instructions as her client was still overseas and not due to return until around Christmas. An adjournment was sought until some time in January 2005. 10. Mr Moorhouse renewed the respondent's application to have the summons dismissed for want of prosecution. In the alternative, Mr Moorhouse foreshadowed the filing of a notice of motion seeking that the summons be struck out for want of prosecution. Directions were given for the filing and serving of a notice of motion as is required to be filed pursuant to r 69 of the Industrial Relations Commission Rules. 11. A notice of motion was filed on 11 November 2004 together with an affidavit of Anthony Hakim sworn 10 November 2004. 12. The notice of motion filed by the respondents sought that the application be struck out for want of prosecution and the applicants pay the costs of the motion. 13. The grounds and reasons in support of the notice of motion were: 1. The Applicant/Respondent to the Notice of Motion has delayed the Conciliation for over nine months and has otherwise not pursued his Application with due diligence. 2. As set forth in the Affidavit of Anthony Hakim sworn 10 November 2004 and filed with this Notice of Motion. 14. The notice of motion was listed for hearing on 15 December 2004. 15. Mr A Hakim was required for cross examination. His evidence was "that something had to be done to solve the problem". This was a reference to the proceedings before the Commission. He stated that if a hearing date was set that would solve the problem. 16. Mr I Latham of counsel, who appeared for the applicant, respondent on the motion, filed in Court an affidavit of Michael Garvin, solicitor for the applicant. His evidence was that since 18 November 2004 he had been involved in obtaining instructions from Joseph Hakim (brother of the applicant), Margaret Hakim (mother of the applicant), and the applicant to settle the claim. 17. On 8 December Mr Garvin received a response from the solicitor for the respondent to an offer of settlement. 18. In cross examination Mr Garvin gave evidence that he had instructions that the applicant would be returning for a conciliation conference and if the matter did not settle, the hearing. His evidence was that the applicant was returning to Australia in January 2005, although he could not give a specific date. Mr Garvin did not have instructions as to why the applicant did not attend the conciliation conference on 7 October 2004. 19. Mr Moorhouse took the Commission to the chronology that I have already summarised and submitted that on a proper analysis, the applicant had not pursued his application with due diligence, relying upon r 146 of the Industrial Relations Commission Rules. 20. The applicant opposed the orders sought in the notice of motion submitting that case management considerations should be secondary to overall interests of justice considerations relying on a decision of the High Court in The State of Q'ld v J L Holdings Pty Ltd (1997) 189 CLR 146. 21. The Commission's discretion in this matter is referred to in Pt 19, Withdrawals and Discontinuance, Div 4, Want of Prosecution, of the Industrial Relations Commission Rules. Rules 146 and 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. 22. Mr Moorhouse referred to Koprivnjak & Ors v Body Corporate Services (NSW) Pty Limited 87 IR 49 where Peterson J heard a notice of motion which sought to dismiss the applicant's claim. 23. His Honour referred to r 146 and r 147 and observed at 51 that the primary objective of the discretion to dismiss the matter under r 146 appears to be synonymous with that which arises under the Supreme Court Rules (NSW). 24. In the Supreme Court, the most recent consideration of the authorities dealing with a strike out application is Raymond Hoser v Christoper Hartcher [1999] NSWSC 527 where Simpson J at [20] - [30] set out the principles relevant to the exercise of discretion to strike out for want of prosecution. The principles may be summarised 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. 25. Having heard the parties and applying the above principles, I am not persuaded, in light of the history of the proceedings, that the applicant has not pursued the proceedings with due diligence. When the matter was mentioned on 29 March 2004, the respondent did not consent or oppose the application for an adjournment of the conciliation conference for six months. The applicant did not appear on 7 October 2004 when the matter was listed for conciliation. The applicant has not provided an explanation to the Court for his non-attendance on 7 October 2004. Needless to say, this is regrettable, and discourteous to the Commission. 26. The applicant was ordered to pay the respondent's costs incurred in respect of the proceedings on 7 October 2004. 27. The applicant was subsequently represented at the further mention on 29 October 2004 and presses his application. 28. The respondent has never seriously asserted (nor could it) that any difficulties occasioned in the proceedings were substantial in nature or caused any serious prejudice. Indeed, there was no real contest, as I have already noted, about the earlier adjournment of the conciliation conference and to the extent that the respondent has been put to additional costs this has been remedied by a costs order in respect of the proceedings on 7 October 2004. 29. Since at least 18 November 2004 the parties have been involved in settlement discussions. 30. Rule 146 requires a finding that a party "has not pursued proceedings with due diligence". As was observed by the Full Bench in Mealey and the Council of the City of Sydney [2004] NSWIRComm 58 at [51]: ... 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. 31. In my view it does not. Mr Moorhouse conceded that the delay in the proceedings could not be characterised as gross delay. I agree. I observe that if the proceedings had not settled on 7 October 2004 they would still be awaiting the filing of affidavits and a hearing date. 32. Mr Moorhouse submitted that in weighing up the matters to be taken into account, I should draw the inference that the proceedings have been commenced for an ulterior purpose. Mr Moorhouse referred to the hearsay evidence that Mr A Hakim had given "that the applicant was going to drag the case out and send him bankrupt." 33. Mr Latham submitted no such inference should be drawn. This was not a motion about abuse of process or misconduct and the applicant was entitled to proper particulars of this matter if it was to be pressed. 34. I do not propose to draw such an inference. In my view the evidence upon which the contention was based was hearsay and the applicant has not had the benefit of proper particulars or the opportunity to put any evidence in reply. 35. Having carefully considered the history of the proceedings, I am of the view that the interests of justice would be best served if the applicant was permitted to have his application properly heard and determined. 36. The notice of motion is therefore dismissed. 37. In my view, costs should be costs in the cause. 38. I fix the matter for a conciliation conference at 10:00 am on Monday 14 February 2005. I require the applicant to be in attendance on that day. 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