Industrial Court of New South Wales CITATION: Collins v Fast-Link Communications Brokers and anor [2007] NSWIRComm 49 This decision has been amended. Please see the end of the judgment for a list of the amendments. Applicant Michelle Collins PARTIES: First respondent Fast-Link Communications Brokers Pty Ltd Second respondent Edwin Almeida FILE NUMBER(S): IRC 2038 of 2003 CORAM: Backman J CATCHWORDS: Unfair contract - s 106 of the Industrial Relations Act 1996 - no appearance by applicant or for or on behalf of the applicant or by respondents - first respondent de-registered, second respondent unable to be located - applicant's solicitor aware of directions hearing because personally informed of time and date some days beforehand - Court attempts to contact the applicant's solicitor following the non-attendance prove unsuccessful - matter adjourned for 7 days for appropriate explanation for non-attendance by applicant's solicitor - if no appropriate explanation or non-attendance, proceedings to be dismissed under Rule 146(a) of the Industrial Relations Commission Rules - direction that transcript of judgment be forwarded forthwith to applicant and applicant's solicitor on the record. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 07/03/2007 EXTEMPORE JUDGMENT DATE: 7 March 2007 Applicant: No appearance LEGAL REPRESENTATIVES: First and second respondent: No appearance JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Backman J Wednesday, 7 March 2007 Matter No IRC 2038 of 2003 MICHELLE COLLINS v FAST-LINK COMMUNICATIONS BROKERS AND ANOR Application under s 106 of the Industrial Relations Act 1996 EX TEMPORE JUDGMENT [2007] NSWIRComm 49 1 This matter was set down for a directions hearing at 9.30 am today, 7 March 2007. Adrian Barwick, a solicitor employed by Employment Lawyers, the applicant's solicitor on the record, was personally informed at 9.00 am on 5 March 2007 by my associate, of today's directions date and the hearing time. 2 The matter was before me on the last occasion for directions on 22 February 2007 at 9.30 am. On that occasion Mr Silk, a solicitor employed by Employment Lawyers, appeared on behalf of the applicant. There was no appearance for the respondents. The matter was stood over in order for Mr Silk to obtain certain instructions from the applicant. In an earlier directions hearing on 26 October 2006 Mr Silk for the applicant informed the Court that the first respondent had been deregistered and the second respondent, a company director of the first respondent, had not been located. Mr Silk also informed the court that the applicant, "is loath to go to the extent of having the company restored to the register". 3 Notwithstanding the fact that the applicant's solicitor was personally informed of today's directions hearing there has been no appearance for or on behalf of the applicant. 4 At 9.55 am today my associate contacted Employment Lawyers and sought to speak to Mr Barwick, the solicitor who had been personally informed of today's directions hearing, with regard to this morning's directions hearing. My associate was told Mr Barwick was in conference. My associate explained to the person on the telephone that no-one had appeared as directed for this morning's hearing and that the Court required someone to attend. The person said she would try and interrupt Mr Barwick in conference; she then put my associate on hold. Later my associate was informed that Mr Barwick would return his call. My associate informed the person that he wanted to speak to Mr Barwick but the person replied that Mr Barwick would call him back. My associate then quoted a telephone number and that concluded the telephone call. 5 It may be inferred in these circumstances that Mr Barwick either refused to come to the telephone or was not informed that the Court was attempting to contact him in relation to this morning's hearing. 6 It is now 10.45am. Mr Barwick or some other representative from Employment Lawyers has not returned my associate's telephone call. Neither a representative from that firm of solicitors nor any other person has appeared in court on behalf of the applicant. 7 The court reporter has been forced to remain in court since 9.30 am while the Court waits for the applicant to put in an appearance. This is obviously an unacceptable waste of valuable time and resources for the Court and the court reporting service, both matters which the Court views most seriously. 8 The seriousness is compounded by the fact that Mr Barwick was made personally aware of this morning's directions hearing. I can only conclude that there has been a deliberate decision on his part not to attend (or to send someone in his place), and he has not had the courtesy to contact the Court with an explanation for failing to attend. 9 In the circumstances I propose to dismiss the applicant's application by way of summons for relief under s 106 of the Industrial Relations Act 1996 in accordance with Rule 146(a) of the Industrial Relations Commission's rules in seven days, unless the applicant or a representative for the applicant appears before the Court on or before that date with an appropriate explanation for her non-attendance. 10 I direct a copy of this transcript be forwarded forthwith to the applicant and to the applicant's instructing solicitors. 11 I make the following orders: 1. This matter is stood over for further directions hearing until 9.30 am on Wednesday, 14 March 2007. 2. If the applicant fails or her instructing solicitors on the record fail to attend on that occasion the applicant's application by way of summons for relief under s 106 will be dismissed under Rule 146(a) of the Industrial Relations Commission's rules. _______________________ AMENDMENTS HISTORY: 08/03/2007 - Typographical error - Paragraph(s) 11 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.