Harry Day v John Smidmore and others (No. 2) [2005] NSWIRComm 406

Industrial Relations Commission of New South Wales in Court Session

CITATION: Harry Day v John Smidmore and others (No. 2) [2005] NSWIRComm 406

APPELLANT/ RESPONDENT ON MOTION Harry Mark Day

FIRST RESPONDENT/ APPLICATION MOTION John Michael Smidmore PARTIES: SECOND RESPONDENT / APPLICANT ON MOTION Christopher Ronald Michael

THIRD RESPONDENT / APPLICANT ON MOTION Adolphi Pty Limited

FILE NUMBER(S): IRC 7172 of 2004

CORAM: Wright J President; Boland J; Backman J

Unfair contract - Appeal - Decision at first instance to permanently stay proceedings on ground of abuse of process overturned on appeal - Subsequent application by notice of motion by respondents for non-disclosure orders in relation to the identity of certain persons named in appeal judgment and in relation to certain allegations by appellant referred to in the appeal judgment - Failure of counsel to make application in a timely way - Consideration of slip rule - Consideration of power to make non-disclosure orders under s 164A of Industrial Relations Act 1996 - Comparison of test under s 164A with common law test - Paramount consideration is open justice - Factors for and against granting application - Application granted - Respondents to pay appellant's costs of the motion

CATCHWORDS: Practice and procedure - Unfair contract - Appeal - Decision at first instance to permanently stay proceedings on ground of abuse of process overturned on appeal - Subsequent application by notice of motion by respondents for non-disclosure orders in relation to the identity of certain persons named in appeal judgment and in relation to certain allegations by appellant referred to in the appeal judgment - Failure of counsel to make application in a timely way - Consideration of slip rule - Consideration of power to make non-disclosure orders under s 164A of Industrial Relations Act 1996 - Comparison of test under s 164A with common law test - Paramount consideration is open justice - Factors for and against granting application - Application granted - Respondents to pay appellant's costs of the motion