Industrial Relations Commission of New South Wales in Court Session CITATION : Vourloumis v Allied Express Transport Pty Ltd [2003] NSWIRComm 203 APPLICANT PARTIES : Suearne Vourloumis RESPONDENT Allied Express Transport PtyLtd FILE NUMBER: IRC 2950 of 2000 CORAM: Marks J CATCHWORDS : Unfair contract - Case management process - Orders made restricting party from relying on evidence filed after a certain date without leave of the Court - Interlocutory application to rely on documents filed out of time - Consideration of case management principles. LEGISLATION CITED : Industrial Relations Act 1996 s 106 CASES CITED : Queensland v J L Holdings Pty Ltd (1996-1997) 189 CLR 189 HEARING DATES: 06/17/2003 DATE OF JUDGMENT: 06/30/2003 APPLICANT N Potts of counsel SOLICITORS McGrath Dicembre & Co LEGAL REPRESENTATIVES: RESPONDENT S C Rothmam SC of counsel SOLICITORS Baker & McKenzie JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: MARKS J Monday 30 June 2003 Matter No 2950 of 2000 SUEARNE VOURLOUMIS v ALLIED EXPRESS TRANSPORT PTY LTD Application under s 106 of the Industrial Relations Act 1996 INTERLOCUTORY JUDGMENT 1 By summons filed in this Court on 26 June 2000 the applicant Suearne Vourloumis sought certain relief against the respondent Allied Express Transport Pty Ltd under s 106 of the Industrial Relations Act 1996 ("the Act"). The proceedings have been the subject of a case management process which culminated in certain orders being made restricting the respondent from relying upon affidavits filed after a certain date without leave of the Court. By notice of motion filed 7 March 2003 the respondent has sought leave accordingly and this judgment deals with that interlocutory application. 2 It is necessary to set out a chronology of the events which have occurred leading up to the filing of the notice of motion. 26 June 2000 Summons for relief filed 10 October 2000 Reply filed by respondent 7 June 2001 Certificate of Unsuccessful Conciliation issued by Peterson J 18 June 2001 First pre hearing directions hearing before Marks J. Parties by consent filed short minutes of order allowing inter alia for discovery and inspection process, for applicant to file and serve affidavits by 10 September 2001, respondents in reply by 27 October 2001 and applicants in response by 19 November 2001. 8 March 2002 Pre hearing directions instituted by Court of its own motion before Marks J. Representatives of the parties indicated that discovery still outstanding, applicant has not yet fully particularised her claim and respondents express concern at the delay. 12 March 2002 Consent directions filed requiring the applicant to file and serve affidavits by 28 March 2002 and any expert's report by 15 April 2002, respondent to file affidavits by 10 June 2002 and the applicant to file affidavits in response by 1 July 2002. 8 July 2002 Parties by consent seek amended timetable requiring applicant to file and serve expert's report by 26 July 2002, respondent to file affidavits by 9 August 2002 and the applicant to file affidavits in response by 30 August 2002. 5 August 2002 Letter from applicant's solicitor to respondent's solicitor waiting advice on production of records to enable expert to prepare economic loss report. 1 October 2002 Letter from applicant's solicitor to respondent's solicitor noting failure to respond to earlier correspondence, that expert's report delayed by non access to respondent's documents and noting failure of respondent to file affidavits by 9 August 2002. 30 October 2002 Letter from applicant's solicitor to respondent's solicitor noting failure to respond to earlier correspondence advising that matter to be relisted. 7 November 2002 Pre hearing directions before Marks J. Respondent's solicitor Ms Ntatsopoulos advises Court that respondent requires a further 4 weeks to finalise its affidavits and that respondent is encountering difficulties in accessing documents required to be discovered, and seeking a further 4 weeks to complete this process. After submissions respondent ordered to file and serve all affidavit material on which it seeks to rely within one month of 7 November 2002 and to give discovery within one month. In terms of affidavit material further order that "the respondent will not be permitted to rely on any affidavit material not filed within this period without further order of the Court. No order of the Court will be made where the failure to file the affidavit material results from lack of attention or lack of diligence of either the respondent or its legal practitioners." 9 January 2003 Letter from applicant's solicitors to respondent's solicitors noting failure of respondent to comply with Court Order of 7 November 2002. 11 to 24 December 2003 Respondent filed five affidavits 6 March 2003 Pre hearing directions before Marks J of Court's own motion. After discussion and attempt by Ms Ntatsopoulos (the respondent's solicitor) to allow the respondent's affidavit material to be relied upon order made that unless the respondent applies by Notice of Motion supported by affidavit by 4pm 7 March 2003 to seek the consent of the Court to permit respondent to rely on affidavit material filed out of time the matter would be placed in a Court running list commencing on 12 May 2003. 7 March 2003 Notice of motion filed seeking order that the respondent be entitled to rely on five affidavits sworn between the period 11 and 24 December 2002 and affidavit of Michelle McDowell not yet filed, accompanied by affidavit of Jackie Ntatsopoulos solicitor for the respondent sworn 7 March 2003. 3 The affidavit of Ms Ntatsopoulos became evidence for the purpose of these interlocutory proceedings and Ms Ntatsopoulos gave oral evidence and was cross-examined on her affidavit. The starting point in terms of her evidence is the filing on 2 April 2002 of the applicant's affidavit in chief which was said to be 186 pages long inclusive of annexures with over 200 pages of exhibits. This affidavit was also said to refer to approximately 28 different clients of the respondent whose dealings with the applicant were relevant for the proceedings. 4 The affidavit of Ms Ntatsopoulos dealt firstly with the period between 2 April 2002 and the date of the directions hearing of 7 November 2002. Ms Ntatsopoulos deposed on information and belief that the General Manager of the respondent Michelle McDowell reviewed the applicant's affidavit in order to identify persons within the respondent's organisation who would be able to assist in answering allegations contained in the applicant's affidavit and that she also commenced preparing her own affidavit with the assistance of Anthea Gilmore who was said to be the respondent's in-house legal counsel. During this period Ms McDowell and Ms Gilmore caused a number of "significant and extensive searches" of the respondent's archive material involving approximately 15 to 20 pallets of boxes to be physically examined in order to locate documentation relevant to the applicant's claim. She also indicated that many of the persons who dealt with the applicant whilst engaged by the respondent were no longer in the respondent's employ. 5 The above evidence comprises the totality of the evidence provided to the Court with respect to that discrete period. 6 The evidence given with respect to what occurred after 7 November 2002 contains a little more detail. I should first observe, however, that Ms Ntatsopoulos deposed that she was unclear of the need to obtain a further order from this Court to allow the respondent's affidavits to be filed after 7 December 2002 being the date fixed at the directions hearing on 7 November 2002. I would have thought that the need to obtain a further order from the Court was obvious from the manner in which the order of 7 November 2002 was framed, and that any experienced solicitor would have understood this to be the case. 7 Ms Ntatsopoulos deposed that after the mention of the matter on 7 November 2002 she "attempted to contact a number of potential witnesses who were no longer employed by the respondent, in order to determine their availability and willingness to assist. In many instances I was not able to get in contact with these potential witnesses or speak to them directly …. further, in many cases, when I was able to contact them, they were unable to assist within the necessary time frame." This would indicate that no attempt was made to contact potential witnesses by Ms Ntatsopoulos after the receipt of the applicant's affidavit evidence in April 2002 until after the directions hearing on 7 November 2002. If this was a result of instructions conveyed by the respondent it indicates, in my opinion, a lack of diligence on the part of the respondent. If Ms Ntatsopoulos' inactivity in this regard was not the result of instructions received from her client, it would constitute, in my opinion, an indication of lack of attention to the proper preparation of the respondent's case. On either basis there is a significant delay. 8 Ms Ntatsopoulos deposed as to the circumstances of the preparation of the affidavit of Ms McDowell the respondent's General Manager. She said on information and belief that Ms Gilmore met with Ms McDowell for the purpose of preparing the affidavit in September and October 2002 but that she did not meet with Ms McDowell for this purpose until 26 November 2002. She then prepared a draft statement which was "well advanced" by 4 December 2002 but which could not be completed that day because of power interruptions experienced by Messrs Baker & McKenzie, the firm by whom she is employed which resulted in some of the material on her computer being lost. 9 Ms Ntatsopoulos first met with Mr Jim Georges on 22 November 2002 when she commenced preparation of a draft statement. This ultimately became the basis of an affidavit. There is a similar position with respect to the other witnesses whose affidavit evidence has been filed late and is the subject of these interlocutory proceedings. Ms Ntatsopoulos first met with David Napper on 25 November 2002 and with Sam Kamaledine, Karen Turner and Colin McDowell on 26 November 2002. Again, this is indicative of considerable delays between April 2002 and the first contact by Ms Ntatsopoulos with these witnesses in the proceedings. 10 Ms Ntatsopoulos deposed in a general way concerning the respondent's conduct and the fact that the respondent had "sought to search all its records and databases. It has sought to contact many former employees to assist in this process and to assist in the proceedings. In some cases this process has been unsuccessful. In some cases this has led to delays not within the respondent's control." 11 It is obvious from the evidence of Ms Ntatsopoulos that some of the work undertaken by the respondent was carried out by Ms Gilmore. No attempt was made by the respondent to call any evidence from Ms Gilmore and I raised this matter with Mr Rothman SC of counsel who appeared for the respondent during the course of submissions. I shall return to this aspect later in these reasons for judgment. 12 Ms Ntatsopoulos also made reference in her affidavit to the conduct of the applicant and the fact that the applicant was late in filing her affidavit material, that the applicant's solicitors had been allegedly tardy in conducting inspection of documents discovered by the respondent, and that the applicant had not yet filed her expert evidence. Furthermore, the applicant has indicated for a substantial period of time that she intends amending the summons, but has not yet sought to do so. 13 On one view of it the conduct of the applicant is irrelevant to the determination of this interlocutory application because the focus should substantially be directed to the conduct of the respondent unless the conduct of the applicant or her legal practitioners has contributed to the respondent's delay or otherwise frustrated the respondent's compliance with the orders of the Court. 14 In the course of his submissions on behalf of the respondent Mr Rothman emphasised the prejudice which would attach to the respondent if it were denied the opportunity of relying upon the affidavit evidence filed in the proceedings and submitted, that in any event, the eventual delay in compliance with the Court order was of a minimal kind. Mr Rothman relied in particular upon the well known extract from the judgment of Dawson, Gaudron and McHugh JJ in the High Court of Australia in Queensland v J L Holdings Pty Ltd (1996-1997) 189 CLR 146. At 154 their Honours said: "Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim." 15 It is worth repeating also what was said by their Honours later in their reasons for judgment: "In our view, the matters referred to by the primary judge were insufficient to justify her Honour's refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion." (at 155) 16 There is an obvious public interest in the speedy and efficient administration of the business of a court. Litigants are entitled to have their claims and defences dealt with as efficiently as possible. Undue delays defer the resolution of claims and the determination of contingent liabilities. They add to the costs and distraction created by litigation and impugn the integrity of the administration of justice. Importantly, also, delays impact upon the reliability of the recollection of witnesses. Undue delays and increased transactions within the court process impose a burden on court staff and on court structures. 17 I readily acknowledge the proper approach to the necessity to ensure that litigants are given an appropriate opportunity to raise all issues which should properly be brought before a court in order to determine particular proceedings. However this emphasis, referred to appropriately by the High Court in cases such as Queensland v J L Holdings creates a significant tension between the work of the courts in case management and the necessity to ensure that case management does not supplant "the attainment of justice". There is a consideration of the use of costs orders and orders for the expedition of court processes in the joint judgment of Dawson, Gaudron and McHugh JJ to which I have referred. There are obviously other sanctions available to judges charged with the administration and management of case management processes. These may include in addition to the sanctions referred to, the initiation of proceedings for civil contempt in a worst case scenario and in lesser cases referral of proceedings to appropriate authorities for consideration as to whether there has been professional misconduct, and the making of costs orders personally against legal practitioners. However the latter two sanctions are only appropriate where it is clearly demonstrated that delay has been occasioned by the conduct of legal practitioners. In circumstances where delay is created by the conduct or misconduct of parties, the range of sanctions is more restricted, as I have indicated. In any event the utilisation by a court of any of these sanctions has the effect of further delaying the proceedings and imposes additional burdens on the court itself by reference to its processes and its staff, including court staff and the staff of the judicial officer concerned. 18 In the context of these proceedings my initial reaction was that there had been considerable delay by the respondent in commencing any process to respond to the applicant's affidavit evidence. My concern was compounded by the fact that the respondent made no attempt to call any evidence from the one person who might have been in a position to supplement the evidence of Ms Ntatsopoulos namely Ms Anthea Gilmore. All of these concerns were tempered to some extent by the fact that the respondent would be severely prejudiced if it were unable to rely upon any affidavit evidence, the fact that any hearing will not take place in any event in this calendar year, and that the applicant has also been somewhat dilatory in prosecuting the proceedings and, amazingly, has not yet sought leave to amend the summons originally filed. 19 Mr Rothman sought to explain the respondent's position and the reason for the failure to call any evidence "ROTHMAN: I am trying to address what your Honour put to me and I will deal with it in the details of this particular case and then the principles your Honour asked about, which are, may I be so bold, understandably genuine issues which would face the Court and I don't seek to cavil or go against that issue. Even though there have been delays and, to the extent she has been able, Ms Ntatsopoulos has sought to explain those delays. To the extent there have been delays, they have not been done without at least contacting the other side and not without regard to the fact there are orders in place and mindful of the necessity to seek to obey them. So that whilst it may be, if one has a situation where there was, and I will come back to it, a fundamental disregard to proceedings or orders, the Court may take a view different to the one I am now asking it to take. This is not a case in which the Court would not allow the respondent to file the affidavits. The point your Honour makes about the in-house counsel was referred to in the evidence of Ms Ntatsopoulos. The evidence is closed but your Honour will know in the evidence of Ms Ntatsopoulos there was reference to the fact in-house counsel was -I apologise, I don't think it is in the evidence in fact - the in-house counsel was not available because of issues of leave and the like and I can't take the matter further and apologise, I thought it was in evidence. …. HIS HONOUR: To some extent this is a Court initiated process. Even though these are adversarial proceedings, the Court is as much a party as the parties to the proceedings. I am just left with this impression that I have only heard part of the story and I am not privy to what Ms Gilmore did and when. I can't help but wonder why it is that that evidence was not available to the Court in explanation. ROTHMAN: There are two reasons; firstly, your Honour will recall when this matter came before your Honour, at your Honour's request, your Honour directed that the notice of motion and affidavit in support be filed within 24 hours so that the proposition that we would be in further breach of your Honour's orders by filing further affidavits outside the time limit your Honour suggested can hardly be held against us." 20 For the reasons set out above I am persuaded to grant the orders sought in the respondent's notice of motion. I emphasise that I am persuaded to do so more because of the need to ensure that the respondent is given a proper opportunity of defending the proceedings than by the respondent's explanation for its failure to comply with the directions issued on 7 November 2002. 21 During the course of submissions I heard argument concerning an application by the applicant for the payment of her costs of these interlocutory proceedings. Having regard to the manner in which the applicant participated in those proceedings I propose to make a costs order in favour of the applicant which I understand was not ultimately opposed by the respondent. 22 The chronology which I have earlier set in these reasons for judgment describes the progress of these proceedings thus far. It is approximately three years since they were commenced. The proceedings arise out of the alleged termination by the respondent of the applicant's employment on 7 June 1999, some four years ago. Given the case preparation steps which still need to be undertaken, it is unlikely that these proceedings will be heard in the calendar year 2003. These facts per se do not auger well for the cost effective and expeditious disposal of these proceedings. The parties and their legal practitioners are urged to endeavour to reach agreement on some further consent directions aimed at expediting their timely disposition. Obviously, the liberty to apply which has been granted generally with respect to these proceedings continues. ORDERS 23 I make the following orders: 1. The respondent shall be permitted to rely upon those affidavits described in the respondent's notice of motion filed 7 March 2003 which were filed on or before 31 January 2003. 2. The respondent shall pay the applicant's costs of the motion to be assessed in default of agreement. ______________________ 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.