Harry Day v John Smidmore and others [2005] NSWIRComm 320

Industrial Relations Commission of New South Wales in Court Session

Harry Day v John Smidmore and others [2005] NSWIRComm 320 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPELLANT Harry Mark Day

FIRST RESPONDENT John Michael Smidmore PARTIES: SECOND RESPONDENT Christopher Ronald Michael

THIRD RESPONDENT Adolphi Pty Ltd

FILE NUMBER(S): IRC 7172 of 2004

CORAM: Walton J Vice-President; Boland J; Backman J

Appeal - Unfair contract - Summons for relief under s 106 of Industrial Relations Act 1996 permanently stayed on the grounds the applicant/appellant by his conduct had compromised the prospects for a fair trial - Consideration of the tests to be applied in permanently staying proceeding for abuse of process - Effect of applicant/appellant's conduct on respondents, respondents' legal representatives and respondents witnesses - Notice of contention contending judge at first instance erred in not upholding respondent's motion on other grounds put at first instance - Applicant/appellant's conduct described as disgraceful - Applicant/appellant's conduct not such as to give rise to an unacceptable risk of injustice - Leave to appeal granted - Appeal upheld - Proceedings remitted for trial CATCHWORDS: Practice and Procedure - Appeal - Unfair contract - Summons for relief under s 106 of Industrial Relations Act 1996 permanently stayed on the grounds the applicant/appellant by his conduct had compromised the prospects for a fair trial - Consideration of the tests to be applied in permanently staying proceeding for abuse of process - Effect of applicant/appellant's conduct on respondents, respondent's legal representatives and respondents witnesses - Notice of contention contending judge at first instance erred in not upholding respondent's motion on other grounds put at first instance - Applicant/appellant's conduct described as disgraceful - Applicant/appellant's conduct not such as to give rise to an unacceptable risk of injustice - Leave to appeal granted - Appeal upheld - Proceedings remitted for trial